REPORT on the proposal for a regulation of the European Parliament and of the Council on substances that deplete the ozone layer (recast)

17.2.2009 - (COM(2008)0505 – C6‑0297/2008 – 2008/0165(COD)) - ***I

Committee on the Environment, Public Health and Food Safety
Rapporteur: Johannes Blokland
(Recast – Rule 80a of the Rules of Procedure)

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a regulation of the European Parliament and of the Council on substances that deplete the ozone layer (recast)

(COM(2008)0505 – C6‑0297/2008 – 2008/0165(COD))

(Codecision procedure – recast)

The European Parliament,

–   having regard to the Commission proposal to the European Parliament and the Council (COM(2008)0505)[1],

–   having regard to Article 251(2) and Articles 133 and 175(1) of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6‑0297/2008 ),

–   having regard to the Interinstitutional Agreement of 28 November 2001 on a more structured use of the recasting technique for legal acts[2],

–   having regard to the letter of 17 December 2008 from the Committee on Legal Affairs to the Committee on the Environment, Public Health and Food Safety in accordance with Rule 80a(3) of its Rules of Procedure,

–   having regard to the opinion of the Committee on Legal Affairs on the proposed legal basis,

–   having regard to Rules 80, 51 and 35 of its Rules of Procedure,

–   having regard to the report of the Committee on the Environment, Public Health and Food Safety and the opinion of the Committee on Legal Affairs (A6‑0045/2009),

A. whereas, according to the Consultative Working Party of the Legal Services of the European Parliament, the Council and the Commission, the proposal in question does not include any substantive amendments other than those identified as such in the proposal and whereas, as regards the codification of the unchanged provisions of the earlier acts together with those amendments, the proposal contains a straightforward codification of the existing texts, without any change in their substance,

1.  Approves the Commission proposal as adapted to the recommendations of the Consultative Working Party of the legal services of the European Parliament, the Council and the Commission and incorporating the technical amendments approved by the Committee on Legal Affairs and as amended below;

2.  Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;

3.  Instructs its President to forward its position to the Council and Commission.

Amendment  1 Proposal for a regulation Citation 1
Text proposed by the Commission	Amendment
Having regard to the Treaty establishing the European Community, and in particular Articles 133 and 175(1) thereof,	Having regard to the Treaty establishing the European Community, and in particular Article 175(1) thereof,
Amendment  2 Proposal for a regulation Recital 2
Text proposed by the Commission	Amendment
(2) It is established that continued emissions of ozone-depleting substances at current levels continue to cause significant damage to the ozone layer. There is clear evidence of a decrease in the atmospheric burden of ozone depleting substances and some early signs of stratospheric ozone recovery have been observed. However, the recovery of the ozone layer to concentration level existing before 1980 is not projected to take place before the middle of the 21st century. Increased UV-B radiation resulting from ozone depletion therefore persists as a significant threat to health and environment. Further efficient measures need therefore to be taken in order to protect human health and the environment against adverse effects resulting from such emissions and to avoid risking further delay in the recovery of the ozone layer.	(2) It is established that continued emissions of ozone-depleting substances at current levels continue to cause significant damage to the ozone layer. There is clear evidence of a decrease in the atmospheric burden of ozone depleting substances and some early signs of stratospheric ozone recovery have been observed. However, the recovery of the ozone layer to concentration level existing before 1980 is not projected to take place before the middle of the 21st century. Increased UV-B radiation resulting from ozone depletion therefore persists as a significant threat to health and environment. At the same time, these substances have high global warming potential and are contributory factors towards increasing the temperature of the planet. Further efficient measures need therefore to be taken in order to protect human health and the environment against adverse effects resulting from such emissions and to avoid risking further delay in the recovery of the ozone layer.
Justification
Apart from the chemical properties they have as a result of ozone depletion, these substances also have high global warming potential and may, therefore, bring about an increase in the temperature of the planet.
Amendment  3 Proposal for a regulation Recital 2 a (new)
Text proposed by the Commission	Amendment
	(2a) Many ozone depleting substances (ODS) are greenhouse gases but are not controlled under the United Nations Framework Convention for Climate Change and its Kyoto Protocol under the assumption that the Montreal Protocol would phase out ODS.  Despite progress made in the Protocol, the task of phasing out ODS still needs to be completed in the European Union and globally. It is therefore desirable to minimise and eliminate the production and use of ODS wherever technically feasible alternatives are available.
Amendment  4 Proposal for a regulation Recital 8
Text proposed by the Commission	Amendment
(8) Under Regulation (EC) No  2037/2000  the production  and placing on the market  of chlorofluorocarbons, other fully halogenated chlorofluorocarbons, halons, carbon tetrachloride, 1,1,1-trichloroethane, hydrobromofluorocarbons, bromochloromethane and methyl bromide have  been phased out.	(8) Under Regulation (EC) No  2037/2000  the production  and placing on the market  of chlorofluorocarbons, other fully halogenated chlorofluorocarbons, halons, carbon tetrachloride, 1,1,1-trichloroethane, hydrobromofluorocarbons, bromochloromethane and methyl bromide have  been phased out, and the production and placing on the market of those substances and of products and equipment containing those substances is thus prohibited. It is now also appropriate progressively to prohibit the use of those substances and of products and equipment containing such substances.
Justification
One of the greatest threats for the ozone layer are the ozone depleting substances which are already produced. In order to limit the ozone depleting effect (and the greenhouse effect), it is important that the use of the mentioned ozone depleting substances will be limited as far as possible. Incentives are needed to reduce the reliance on especially halons, and try to get the chemicals collected and safely destroyed. This was already mentioned in the preamble.
Amendment  5 Proposal for a regulation Recital 10
Text proposed by the Commission	Amendment
(10) The availability of alternatives to methyl bromide should be reflected in more substantial reductions in its production and consumption compared to the Protocol. The  exemption for critical uses  of methyl bromide should cease completely  whilst maintaining the possibility to grant derogation in emergency situations in the case of unexpected pests or disease outbreaks where such emergency use is to be permitted under Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market1 and Directive 98/8/EC of the European Parliament and of the Council of 16 February 1998 concerning the placing of biocidal products on the market2. In such cases measures to reduce emissions, such as the use of virtually impermeable films for soil fumigation, should be foreseen.	(10) In view of Commission Decision 2008/753/EC of 18 September 2008 on the non-inclusion of methyl bromide in Annex I of Directive 91/414/EEC and of the availability of alternatives to methyl bromide there should be a total ban on its production and consumption. The exemption for critical uses of methyl bromide should cease completely.
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1OJ L 230, 19.8.1991, p. 1. Directive as last amended by Commission Directive 2007/52/EC (OJ L 214, 17.8.2007, p. 3).
2OJ L 123, 24.4.1998, p. 1. Directive as last amended by Commission Directive 2007/70/EC of 29 November 2007 (OJ L 312, 30.11.2007 p. 26).
Justification
Following to Commission Decision 2008/753/EC of 18 September 2008 concerning the non-inclusion of methyl bromide in Annex I of Directive 91/414/EEC, the authorisation of methyl bromide will expire at 18 March 2009. It would be logic that the use of methyl bromide will also be prohibited in the context of this directive.
Amendment  6 Proposal for a regulation Recital 11
Text proposed by the Commission	Amendment
(11) The use of methyl bromide for quarantine and pre-shipment applications should also be controlled.  The average levels of use during the period from 2005 to 2008  should not  be exceeded  and ultimately be reduced  and phased-out by 2015, while in the meantime recuperation technologies should be applied .	(11) In view of Regulation 2032/2003 which banned the use of methyl bromide as a biocide by 1 September 2006, and Commission Decision 2008/753/EC which banned the use of methyl bromide as a plant protection product by 18 March 2010, the use of methyl bromide for quarantine and pre-shipment applications should also be banned by 18 March 2010.
Justification
Many alternatives to QPS treatment for various perishable and durable commodities. These alternatives range from alternative chemical treatments to carbon dioxide treatments and to heat treatments and others. 10 years ago several Member States successfully banned the use of QPS treatments because alternatives are available- their long-standing experience has demonstrated that a ban is feasible. Furthermore, following Commission Decision 2008/753/EC the authorisation of methyl bromide as a plant protection product will be withdrawn by 18 March 2009, and remaining supplies cannot be used after 18 March 2010. This means methyl bromide cannot be used for QPS after 18 March 2010 – it would be illegal.
Amendment  7 Proposal for a regulation Recital 18
Text proposed by the Commission	Amendment
(18) Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances and Directive 1999/45/EC of the European Parliament and of the Council of 31 May 1999 concerning the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous preparations require the labelling of substances classified as ozone depleting substances. As ozone depleting substances produced for feedstock uses can be released for free circulation in the Community, they should be distinguished from those substances produced for other uses, in order to avoid any diversions of feedstock to other uses which are controlled under the Regulation. Furthermore, in order to inform end users and to facilitate the enforcement of the Regulation also products and equipment containing or relying on such substances should be so labelled during servicing and maintenance.	(18) Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances and Directive 1999/45/EC of the European Parliament and of the Council of 31 May 1999 concerning the approximation of the laws, regulations and administrative provisions of the Member States relating to the classification, packaging and labelling of dangerous preparations require the labelling of substances classified as ozone depleting substances. As ozone depleting substances produced for feedstock uses as well as for laboratory and analytical uses and use as processing agents can be released for free circulation in the Community, they should be distinguished from those substances produced for other uses, in order to avoid any diversions to other uses which are controlled under the Regulation. Furthermore, in order to inform end users and to facilitate the enforcement of the Regulation also products and equipment containing or relying on such substances should be so labelled during servicing and maintenance.
Justification
The risk that ozone depleting substances produced for feedstock (article 7) are used for other purposes applies also for laboratory and analytical uses (article 10) and use as processing agents (article 8). It is therefore logic that these labelling requirements also apply for laboratory and analytical uses and use as processing agents and it would improve the prevention of illegal trade.
Amendment  8 Proposal for a regulation Recital 22
Text proposed by the Commission	Amendment
(22) Member States should carry out inspections on a risk-based approach in order to ensure compliance with all provisions of the Regulation thus targeting those activities representing the highest risk of illegal trade or emission of controlled substances.	(22) Member States should carry out inspections on a risk-based approach in order to ensure compliance with all provisions of the Regulation thus targeting those activities representing the highest risk of illegal trade or emission of controlled substances. Member States shall ensure that inspections are performed in compliance with Recommendation 2001/331/EC of the European Parliament and of the Council of 4 April 2001 providing for minimum criteria for environmental inspections in the Member States1. The results of those inspections shall be published on the internet.
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	1 OJ L 118, 4.4.2001, p. 41-46
Justification
The success of this regulation is very dependant on good inspections. It is therefore necessary that the provisions from recommendation 2001/331/EC will be applied.
Amendment  9 Proposal for a regulation Recital 25
Text proposed by the Commission	Amendment
(25) In particular, the Commission should be empowered to determine the format and content of labels for controlled substances for feedstock uses, to amend Annex III on processes for which controlled substances may be used as process agents, to adopt measures to reduce the placing on the market and use of methyl bromide for quarantine and pre-shipment uses, to amend Annex VI on critical uses of halons, to adopt additional monitoring and control measures on trade, to adopt requirements for products produced with controlled substances in countries not party to the Protocol, to amend Annex VII on destruction technologies, to establish a list with products and equipment from which the recovery and subsequent destruction of controlled substances shall be mandatory, to adopt minimum qualification requirements for personnel, to establish requirements for the prevention of emissions and leakages of controlled substances, to include new substances into Annex II and to amend reporting requirements for Member States and undertakings. Since those measures are of general scope and are designed to amend non-essential elements of this Regulation, inter alia by supplementing it with new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.	(25) In particular, the Commission should be empowered to determine the format and content of labels for controlled substances for feedstock uses as well as for laboratory and analytical uses and use as processing agents, to amend Annex III on processes for which controlled substances may be used as process agents, to amend Annex VI on critical uses of halons, to adopt additional monitoring and control measures on trade, to adopt requirements for products produced with controlled substances in countries not party to the Protocol, to amend Annex VII on destruction technologies, to establish a list with products and equipment from which the recovery and subsequent destruction of controlled substances shall be mandatory, to adopt minimum qualification requirements for personnel, to establish requirements for the prevention of emissions and leakages of controlled substances, to include new substances into Annex II and to amend reporting requirements for Member States and undertakings. Since those measures are of general scope and are designed to amend non-essential elements of this Regulation, inter alia by supplementing it with new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.
Justification
The risk that ozone depleting substances produced for feedstock (article 7) are used for other purposes applies also for laboratory and analytical uses (article 10) and use as processing agents (article 8). It is therefore logic that these labelling requirements also apply for laboratory and analytical uses and use as processing agents and it would improve the prevention of illegal trade.
Following the deletion of article 12, the part concerning methyl bromide should also be deleted.
Amendment  10 Proposal for a regulation Recital 26
Text proposed by the Commission	Amendment
(26) Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste1 and Council Directive 91/689/EEC of 12 December 1991 on hazardous waste provide for measures on the destruction of controlled substances. In accordance with the Protocol only technologies approved by the Parties may be applied to the destruction of controlled substances. The relevant Decisions of the Parties should therefore be incorporated in this Regulation.	(26) Whereas significant amounts of ODS remain stored or “banked” in products and equipment (for instance in insulation foams, refrigerants and air-conditioning systems). A legal framework should be put in place for the destruction of controlled substances. Directive 2008/98/EC of the European Parliament and of the Council of 19 November 2008 on waste and repealing certain Directives1 and Council Directive 91/689/EEC of 12 December 1991 on hazardous waste provide for measures on the destruction of controlled substances. Decision No 1600/2002/EC of the European Parliament and of the Council of 22 July 2002 laying down the Sixth Community Environment Action Programme (Sixth EAP) provides in Article 8(2), point (iv) for the development of a directive on construction and demolition waste, which is essential for the destruction of ODS in insulation foams. In accordance with the Protocol only technologies approved by the Parties may be applied to the destruction of controlled substances. The relevant Decisions of the Parties should therefore be incorporated in this Regulation.
1 OJ L 114, 27.4.2006, p 9.	1 OJ L 312, 22.11.2008, p. 3.
Justification
The 6th EAP provides for the development of a directive on construction and demolition waste. For the destruction of ODS in insulation foams (which is an enormous quantity) it is essential that this directive will be adopted. Until now the EC has not published anything. In its resolution on the thematic strategy on waste of 13 February 2007 (A6/438/2006) the EP has also called on the Commission for this.
Amendment  11 Proposal for a regulation Recital 27
Text proposed by the Commission	Amendment
(27) The Commission should be empowered to compile a list of products and equipment for which recovery, or destruction without prior recovery, of controlled substances shall be considered technically and economically feasible, and therefore mandatory.	(27) The Commission should be empowered to compile a list of products and equipment for which recovery, or destruction without prior recovery, of controlled substances shall be considered technically and economically feasible, and therefore mandatory. The Commission should also adopt an action plan which provides for incentives for withdrawing the substances in question and replacing them with safer alternatives.
Justification
Bearing in mind the increasingly pressing need to recover and eliminate these substances as soon as possible, it would be useful if the Commission drew up an action plan with a view to providing incentives for 'users' and 'producers' to withdraw and replace those substances as swiftly as possible.
Amendment  12 Proposal for a regulation Recital 28
Text proposed by the Commission	Amendment
(28)  A flexible mechanism should be established to ensure that substances identified as ozone depleting by the Scientific Assessment Panel under the Protocol are to be reported, to allow for assessing the magnitude of their environmental impact, and to ensure that those new substances which have been identified as having a significant ozone depleting potential are submitted to control measures  .	(28)  A flexible mechanism should be established to ensure that substances identified as ozone depleting by the Scientific Assessment Panel under the Protocol are to be reported, to allow for assessing the magnitude of their environmental impact, and to ensure that those new substances which have been identified as having a significant ozone depleting potential are submitted to control measures. In this context, special attention should be paid to the role of very short-lived substances, in the light of the 2006 United Nations Environment Programme/World Meteorological Organisation (UNEP/WMO) ozone assessment, which concluded that the ozone depletion potential of these substances is greater than previously assessed.
Justification
The 2006 UNEP/WMO ozone assessment concludes that "the role of very short-lived substances in ozone depletion is of greater importance than previously assessed. It is now believed that very short-lived halogenated substances such as normal-propyl bromide (n-PB), which is almost exclusively anthropogenic, significantly contribute to total stratospheric bromine and thus have an adverse effect on stratospheric ozone. The Commission proposal included n-PB under Annex II, Part B (substances to be reported), but it is needed to be under Annex II, Part A (substances restricted).
Amendment  13 Proposal for a regulation Article 2 – paragraph 2
Text proposed by the Commission	Amendment
2.  This Regulation shall not apply to  insignificant quantities of any substance  referred to in paragraph 1 ,  contained in any product or substance and that originates  from inadvertent or coincidental production during a manufacturing process, from unreacted feedstock, or from use as a processing agent which is present in chemical substances as trace impurities, or that is emitted during product manufacture or handling.	2. This Regulation shall not apply to insignificant quantities of any substance referred to in paragraph 1 contained in any product or substance that originates from inadvertent or coincidental production during a manufacturing process, from unreacted feedstock, or from use as a processing agent which is present in chemical substances as trace impurities.
Justification
The text of regulation 2037/2000 needs to be updated to minimise the activities that are excluded from the scope of the regulation. The commas in paragraph 2 are ambiguous, implying that ‘insignificant’ might not apply to the full list of items. Potentially this text could allow uncontrolled emissions of ODS during ‘product manufacture’ (e.g. foam manufacture) or ‘handling’ of ODS. The text of the recast regulation needs to be clearer, without ambiguity. Derogations for feedstock, process agents etc. are described in later Articles of the Regulation, so Article 1 should not potentially exclude these items from the scope of the Regulation.
Amendment  14 Proposal for a regulation Article 3 – point 10
Text proposed by the Commission	Amendment
(10) ‘production’ means the amount of controlled substances produced  , including the amount produced as by-product, less the amount destroyed by technologies approved by the Parties. No amount recovered, recycled or reclaimed shall be considered as ‘production’,	(10) ‘production’ means the amount of controlled substances produced, including the amount produced as by-product. No amount recovered, recycled or reclaimed shall be considered as ‘production’,
Justification
Regulation 2037/2000 used the Protocol’s traditional definition of production, which deducted destruction when calculating ‘production’ levels. This is no longer appropriate because most production of ozone depleting substances has ceased and it is necessary to close loopholes that would allow new or continued production. The definition needs to exclude destruction. Otherwise companies will be entitled to continue to produce ozone depleting substances legitimately if they destroy some. This will not lead to phase-out.
Amendment  15 Proposal for a regulation Article 3 – paragraph 16
Text proposed by the Commission	Amendment
(16) ‘placing on the market’ means the supplying or making available to third persons  within the Community for the first time , against payment or free of charge,  and includes the release for free circulation as referred to in Regulation (EC) No 450/2008 ,	(16) ‘placing on the market’ means the supplying or making available to third persons  within the Community, against payment or free of charge, and includes the release for free circulation as referred to in Regulation (EC) No 450/2008. In respect of products and equipment this refers only to the supplying or making available within the Community for the first time,
Justification
Although the proposed definition of "placing on the market", restricting it to the first transaction within the European Community, is in line with the provisions of the Montreal Protocol and the definition of this term under Regulation (EC) 842/2006 on certain fluorinated greenhouse gases, it might weaken the effective implementation of control measures applicable to substances. The purchase within the European Community of controlled substances would no longer be regulated and the enforcement authorities limited to inspections of their subsequent use.
Amendment  16 Proposal for a regulation Article 3 – paragraph 19
Text proposed by the Commission	Amendment
(19) ‘recycling’ means the reuse of a recovered controlled substance following a basic cleaning process such as filtering and drying,	(19) ‘recycling’ means the reuse of a recovered controlled substance following a basic cleaning process,
Justification
The proposed definition is different to that used in the F-Gas Regulation 842/2006. Companies that carry out recycling generally recycle HCFCs, controlled substances under this Regulation, and HFCs, which are controlled by the F-Gas Regulation. It is important that consistency is maintained between the two Regulations for recycling and reclamation.
Amendment  17 Proposal for a regulation Article 3 – point 20
Text proposed by the Commission	Amendment
(20) ‘reclamation’ means the reprocessing and upgrading of a recovered controlled substance through such processes as filtering, drying, distillation and chemical treatment in order to restore the substance to a specified  quality equivalent to virgin material,	(20) ‘reclamation’ means the reprocessing of a recovered controlled substance in order to meet a specified standard of performance equivalent to virgin material,
Justification
The proposed definition changes the meaning of reclamation from that contained in 2037/2000 and the Montreal Protocol, which may restrict the quantity of reclaimed material available. The 2037/2000 definition and the Montreal Protocol definition require restoration to a specified standard of performance, which provides suitable control without undue restrictions.
Amendment  18 Proposal for a regulation Article 3 – point 23
Text proposed by the Commission	Amendment
(23) ‘pre-shipment applications’ means treatments, other than quarantine applications, applied within 21 days prior to export to meet the requirements which are established by a national authority of the importing or of the exporting country.	(23) ‘pre-shipment applications’ means treatments, other than quarantine applications, applied within 21 days prior to export to meet the requirements which are established by a national authority of the importing country, or official requirements established before December 1995 in the exporting country.
Justification
The EC regulation cannot be weaker than the Protocol definition. Regarding exporting countries, the Protocol definition restricts pre-shipment to ‘existing’ requirements (Protocol Decision VII/5 (b)), this means requirements that already existed when the Decision was made in December 1995.
Amendment  19 Proposal for a regulation Article 3 – point 23 a (new)
Text proposed by the Commission	Amendment
	(23a) ‘products and equipment relying on controlled substances’ means products and equipment which do not function without controlled substances, not including those products and equipment used for the production, processing, recovery, recycling, reclamation or destruction of controlled substances.
Justification
Products and equipment on controlled substances should be defined for clarity reasons.
Amendment  20 Proposal for a regulation Article 4 – paragraph 2 – point b
Text proposed by the Commission	Amendment
(b) the calculated level of its production of hydrochlorofluorocarbons in the period  from  1 January 2014 to 31 December 2014 and in each 12-month period thereafter does not exceed  14 % of the calculated level of its production of hydrochlorofluorocarbons in 1997;	(b) the calculated level of its production of hydrochlorofluorocarbons in the period from  1 January 2014 to 31 December 2014 and in each 12-month period thereafter does not exceed  3% of the calculated level of its production of hydrochlorofluorocarbons in 1997;
Justification
A small production (under strict reporting and monitoring) of hydrochlorofluorocarbons HCFCs in Europe for laboratory and analytical uses shall be allowed till 3.12.2019 (in conformity with the Montreal Protocol as amended in 2007). However, the calculated level of production is to be decreased from not exceeding 14 % to not exceeding 3% of the calculated level of production of hydrochlorofluorocarbons in 1997. Otherwise the needed amount (that is allowed to be used under Article 11) will be imported – probably from areas with not so strict legislation aimed at ozone layer protection.
Amendment  21 Proposal for a regulation Article 4 – paragraph 2 – point c
Text proposed by the Commission	Amendment
(c) it produces no hydrochlorofluorocarbons after 31 December  2019  .	(c) it produces no hydrochlorofluorocarbons after 31 December  2014  .
Justification
The Commission is proposing that the deadline for the HCFCs production in Europe for export be brought forward (from 2025 to 2020) according to the Montreal Protocol. The review study by Milieu Ltd and Ecosphere Lda was proposed for 2015 but the Commission has not taken up this suggestion. To be more ambitious the deadline should be earlier. Also with regard to Article 11(2) according to the exemption for the use of HCFC’s by the end of 2014, it is logical that at least the production of HCFC should have been stopped.
Amendment  22 Proposal for a regulation Article 5 – paragraph 1
Text proposed by the Commission	Amendment
1. The placing on the market and the use of controlled substances 1 which  are not  in a product other than a container used for the transportation or storage of that substance  shall be prohibited.	1. The placing on the market and the use of controlled substances shall be prohibited except for the derogations listed elsewhere in this Regulation.
Justification
This text is very difficult to comprehend and contains a double-negative (‘which are not’ and ‘other than’). Later Articles introduce derogations to this double negative – likely to produce confusion and diverse interpretations. The paragraph should therefore be a simple prohibition, since the derogations are spelled out later spelled out later.
Amendment  23 Proposal for a regulation Article 6
Text proposed by the Commission	Amendment
The placing on the market of products and equipment containing  or relying on controlled substances  shall be prohibited, with the exception of products and equipment for which the use of the respective controlled substance has been authorised in accordance with  Articles 10, 11(1), (2) and (4)  or  13 .	The placing on the market and the use of products and equipment containing or relying on controlled substances shall be prohibited, with the exception of products and equipment for which the use of the respective controlled substance has been authorised in accordance with articles 10, 11(1), (2) and (4) or 13.
Justification
In order to avoid the endless refilling of leaking product of equipment, this article should be extended to the use (as defined in article 3(17)) of products and equipment.
Amendment  24 Proposal for a regulation Article 7 – paragraph 1
Text proposed by the Commission	Amendment
1. By way of derogation from Articles 4 and 5, controlled substances may be produced, placed on the market and used as feedstock.	1. By way of derogation from Articles 4 and 5, controlled substances may be produced, in addition to the production levels set out in Article 4(2), placed on the market and used as feedstock.
Justification
To be clear that the removal of feedstock from the production definition (Article 3(10)) does not affect the production controls of Article 4(2), this clarification should be added.
Amendment  25 Proposal for a regulation Article 7 a (new)
Text proposed by the Commission	Amendment
	Article 7 a
	Review of derogations
	The Commission shall review the derogations and exemptions, and shall remove derogations or exemptions for the specific uses for which there are technically and economically feasible alternatives.
	Those measures, designed to amend non-essential elements of this Regulation, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 25(3).
Justification
The regulation does not set time limits on the derogations – and in many cases does not set conditions for review/removal.   Some derogations have not been updated in the light of current knowledge about feasible alternatives, e.g. some of the uses listed in Annex III (processing agents) and VI (halons) have feasible alternatives. The regulation should set a regular process with the aim to reduce and eliminate derogations in cases where feasible alternatives exist.
Amendment  26 Proposal for a regulation Article 8 – paragraph 1
Text proposed by the Commission	Amendment
1. By way of derogation from Article 4 and 5, controlled substances may be produced, placed on the market and used as processing agents.	1. By way of derogation from Article 4 and 5, controlled substances may be produced, in addition to the production levels set out in Article 4(2), placed on the market and used as processing agents.
Justification
To be clear that the removal of processing agents from the production definition (Article 3(10)) does not affect the production controls of Article 4(2), this clarification should be added.
Amendment  27 Proposal for a regulation Article 8 – paragraph 3
Text proposed by the Commission	Amendment
3. Controlled substances produced or placed on the market as processing agents may only be used for that purpose.	3. Controlled substances produced or placed on the market as processing agents may only be used for that purpose.
	Containers containing such substances shall be labelled with a clear indication that the substance may only be used as a processing agent. The Commission may determine the form and content of the label to be used. Those measures, designed to amend non-essential elements of this Regulation, inter alia by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 25(3).
Justification
The risk that ozone depleting substances produced for feedstock (article 7) are used for other purposes applies also for laboratory and analytical uses (article 10) and use as processing agents (article 8). It is therefore logic that these labelling requirements also apply for laboratory and analytical uses and use as processing agents and it would improve the prevention of illegal trade.
Amendment  28 Proposal for a regulation Article 8 – paragraph 4
Text proposed by the Commission	Amendment
4. The Commission  may,  in accordance with the procedure referred to in Article 25(2), establish a list of undertakings in which the use of controlled substances as processing agents shall be permitted, laying down, where appropriate,  maximum  quantities that may be used and  emission levels for each of the undertakings concerned.	4. The Commission may, in accordance with the procedure referred to in Article 25(2), establish a list of undertakings in which the use of controlled substances as processing agents shall be permitted, laying down, where appropriate, maximum quantities that may be used for make-up or consumption (in accordance with the Montreal Protocol definitions), and emission levels for each of the undertakings concerned.
	The maximum amount of controlled substances that may be used as process agents within the Community shall not exceed 1 083 metric tonnes per year.
	The maximum amount of controlled substances that may be emitted from process agent uses within the Community shall not exceed 17 metric tonnes per year.
In the light of new information or technical developments, the Commission may amend Annex III  referred to in Article 2(8) .	In the light of new information or technical developments, the Commission shall amend the maximum amounts as mentioned in this paragraph and may amend Annex VI as referred to in Article 3(8) .
Those measures, designed to amend non-essential elements of this Regulation, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 25(3).	Those measures, designed to amend non-essential elements of this Regulation, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 25(3).
Justification
The definition of processing agents under Montreal Protocol Decision X/14 allows the reporting and control of “make-up” or “consumption”.
The EU ceiling for process agents in accordance with the decisions of the Parties of the Montreal Protocol should also be mentioned in this article.
This text is Cross reference appears to be wrong. The list of process agents in Annex III is technically out-of-date in places and needs to be up-dated – it contains some uses for which ODS-free alternatives have been identified by the Technology and Economic Assessment Panel of the Montreal Protocol.
Amendment  29 Proposal for a regulation Article 9
Text proposed by the Commission	Amendment
By way of derogation from Article 5, controlled substances may be placed on the market for destruction within the Community in accordance with the requirements for destruction laid out in Article 22(1).	By way of derogation from Article 5, controlled substances and products and equipment containing controlled substances may be placed on the market for destruction within the Community in accordance with the requirements for destruction laid out in Article 22(1).
Justification
The derogation in article 9 should also apply for the destruction of products and equipment containing controlled substances.
Amendment  30 Proposal for a regulation Article 10 – paragraph 3
Text proposed by the Commission	Amendment
3. Controlled substances produced or placed on the market for essential laboratory and analytical uses may only be used for that purpose.	3. Controlled substances produced or placed on the market for essential laboratory and analytical uses may only be used for that purpose or for destruction within the Community in accordance with the requirements for destruction laid down in Article 22(1).
Justification
This Article as written may prevent the destruction of these substances.
Amendment  31 Proposal for a regulation Article 10 – paragraph 3 a (new)
Text proposed by the Commission	Amendment
	3a. Containers containing such substances shall be labelled with a clear indication that the substance may only be used for essential laboratory and analytical use. The Commission may determine the form and content of the label to be used. Those measures, designed to amend non-essential elements of this Regulation, inter alia by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 25(3).
Justification
The risk that ODS produced for feedstock (article 7(2)) are used for other purposes applies also for laboratory and analytical uses. It is therefore logic that these labelling requirements also apply for laboratory and analytical uses and it would improve the prevention of illegal trade.
Amendment  32 Proposal for a regulation Article 10 – paragraph 4
Text proposed by the Commission	Amendment
4. Any person using controlled substances other than hydrochlorofluorocarbons for essential laboratory and analytical uses shall register with the Commission, indicating the substances being used, the purpose, the estimated annual consumption and the suppliers of those substances, and shall update that information when changes occur.	4. Any undertaking using controlled substances other than hydrochlorofluorocarbons for essential laboratory and analytical uses shall register with the Commission, indicating the substances being used, the purpose, the estimated annual consumption and the suppliers of those substances, and shall update that information when changes occur.
Justification
It is preferable to register undertakings in stead of persons using ODS for laboratory and analytical uses in order to avoid a disproportional administrative burden.
Amendment  33 Proposal for a regulation Article 10 – paragraph 5
Text proposed by the Commission	Amendment
5. By the date specified in a notice issued by the Commission, producers and importers supplying the persons referred to in paragraph 4 or using the controlled substances for their own account shall declare to the Commission the foreseen demand for the period specified in the notice, specifying the nature and quantities of controlled substances needed.	5. By the date specified in a notice issued by the Commission, producers and importers supplying the undertaking referred to in paragraph 4 or using the controlled substances for their own account shall declare to the Commission the foreseen demand for the period specified in the notice, specifying the nature and quantities of controlled substances needed.
Justification
It is preferable to register undertakings in stead of persons using ODS for laboratory and analytical uses in order to avoid a disproportional administrative burden.
Amendment  34 Proposal for a regulation Article 10 – paragraph 6 – subparagraph 2
Text proposed by the Commission	Amendment
The total quantity annually authorised under licences shall not exceed 130% of the average of the calculated level of controlled substances which producers or importers placed on the market or used for their own account for essential laboratory and analytical uses in the years 2005 to 2008.	The total quantity annually authorised under licences shall not exceed 100% of the average of the calculated level of controlled substances which producers or importers placed on the market or used for their own account for essential laboratory and analytical uses in the years 2005 to 2008.
Justification
The ceiling of 130% as proposed does not reflect the need to move away from the use of ODS and should therefore be lowered to 100%.
Amendment  35 Proposal for a regulation Article 11 – paragraph 2
Text proposed by the Commission	Amendment
2. By way of derogation from Article 5, until 31 December 2014, reclaimed hydrochlorofluorocarbons may be placed on the market and used for the maintenance and servicing of existing refrigeration and air-conditioning equipment, provided that the container labelled with an indication that the substance has been reclaimed.	2. By way of derogation from Article 5, until 31 December 2014, reclaimed hydrochlorofluorocarbons may be placed on the market and used for the maintenance and servicing of existing refrigeration, air-conditioning equipment and reversible air-conditioning/heat pump systems equipment, provided that the container labelled with an indication that the substance has been reclaimed.
Until 31 December 2014, recycled hydrochlorofluorocarbons may be used for the maintenance and servicing of existing refrigeration and air-conditioning equipment provided that they have been recovered from such equipment by the undertaking concerned.	Until 31 December 2014, recycled hydrochlorofluorocarbons may be used for the maintenance and servicing of existing refrigeration, air-conditioning equipment and reversible air-conditioning/heat pump systems equipment provided that they have been recovered from such equipment at the same site at which the recovered substance is used.
Justification
This amendment replaces amendment 13.
For consistency reason the reversible air-conditioning/heat pump systems should be added, as it is the case for the existing regulation EC No 2037/2000.
In order to be able to prevent illegal trade it is necessary to be able to monitor the flow of the substances. It is therefore necessary that the substance would either be recycled and reused in the same site.
Amendment  36 Proposal for a regulation Article 11 – paragraph 3
Text proposed by the Commission	Amendment
3. When reclaimed or recycled hydrochlorofluorocarbons are used for the maintenance and servicing, the refrigeration and air-conditioning equipment concerned shall be labelled with an indication of the type of substance, its quantity contained in the equipment and, as set out in Article 6 of Directive 67/548/EEC, the danger symbol and indication of danger involved in the use of the substance.	3. When reclaimed or recycled hydrochlorofluorocarbons are used for the maintenance and servicing, the refrigeration, air-conditioning equipment and reversible air-conditioning/heat pump systems equipment concerned shall be labeled with an indication of the type of substance, its quantity contained in the equipment and, as set out in Article 6 of Directive 67/548/EEC, the danger symbol and indication of danger involved in the use of the substance. A record shall be kept of the quantity and type of substance added, and the identification of the company or technician who performed the servicing and maintenance.
Justification
Even though the equipment scope for use of recycled/reclaimed HCFCs is the same as 2037/2000 the wording is now not consistent with that in Article 22. Reversible air-conditioning/heat pump systems should be added for consistency. It is important to ensure that it is clear that the applications can be serviced with reclaimed hydrochlorofluorocarbons. Secondly, the proposal is not clear if the label relates to the quantity/type of reclaimed and or recycled (both could be added) or the total quantity.
Amendment  37 Proposal for a regulation Article 11 – paragraph 3 a (new)
Text proposed by the Commission	Amendment
	3a. Member States shall maintain registers of companies that place reclaimed hydrochlorofluorocarbons on the market. Only companies listed on the registers shall be permitted to place reclaimed hydrochlorofluorocarbons on the market. By 1 January 2010, Member States shall notify the Commission of their registration programme. Member States shall make the register available to allow companies receiving reclaimed hydrochlorofluorocarbons to confirm the source of the substance.
	Companies using reclaimed hydrochlorofluorocarbons for servicing and maintenance shall maintain a register listing companies that have supplied reclaimed hydrochlorofluorocarbons.
Justification
One of the aims of this regulation is to reduce the risk of illegal use and trade in HCFCs by restricting placing on the market of reclaimed HCFCs. Particularly if reclaimed HCFCs are equivalent or similar to virgin HCFCs it will be difficult to distinguish reclaimed from virgin substance. Companies engaged in reclaiming are required to have waste treatment licenses and keep records of their reclaim activities. Implementing registers that are accessible and the requirement for these companies to maintain records will help ensure that illegal trade is discouraged.
Amendment  38 Proposal for a regulation Article 11 – paragraph 4 – subparagraph 2
Text proposed by the Commission	Amendment
The exemption referred to in the first subparagraph may not be authorised for a period which extends beyond 31 December 2019.	The exemption referred to in the first subparagraph may not be authorised for a period which extends beyond 31 December 2014.
Justification
It has been proposed that the deadline for the HCFCs production in Europe for export be brought forward (from 2025 to 2020) according to the Montreal Protocol. The review study by Milieu Ltd and Ecosphere Lda was proposed for 2015 but the Commission has not taken up this suggestion. To be more ambitious, the deadline should be earlier. Also with regard to Article 11(2) according to the exemption for the use of HCFC’s by the end of 2014, it is logical that at least the production of HCFC should have been stopped.
Amendment  39 Proposal for a regulation Article 12
Text proposed by the Commission	Amendment
Article 12	deleted
Quarantine and pre-shipment applications and emergency uses of methyl bromide
1. By way of derogation from Article 5(1), methyl bromide may be placed on the market and used for quarantine and pre-shipment applications until 31 December 2014.
Methyl bromide may only be used on sites approved by the competent authorities of the Member State concerned and under the condition that methyl bromide released from the consignment is recovered with a recovery rate of at least [80 %].
2. The calculated level of methyl bromide which importers place on the market or use for their own account in the period from 1 January 2010 to 31 December 2010 and in each 12-month period thereafter until 31 December 2014 shall not exceed 210 ODP tonnes.
For the period  from  1 January  2010  to 31 December  2010  and for each 12-month period thereafter  until 31 December 2014  , each importer shall ensure that the calculated level of methyl bromide which it places on the market or uses for its own account for quarantine and pre-shipment applications shall not exceed  100 % of  the average of the calculated level of methyl bromide which it placed on the market or used for its own account for quarantine and pre-shipment in the years 1996, 1997 and 1998.
3. Methyl bromide placed on the market for quarantine and pre-shipment applications may only be used for those purposes.
4. The Commission shall take measures to reduce the calculated level of methyl bromide which importers may place on the market or use for their own account for quarantine and pre-shipment in the light of technical and economic availability of alternative substances or technologies,  , in particular by adapting the quantities referred to in paragraph 2 .
Those measures, designed to amend non-essential elements of this Regulation,  inter alia  by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 25(3).
5. In an emergency, where unexpected outbreaks of particular pests or diseases so require, the Commission, at the request of the competent authority of a Member State, may authorise the temporary  production, placing on the market and  use of methyl bromide. Such authorisation shall apply for a period not exceeding 120 days and to a quantity not exceeding 20  metric  tonnes  and shall specify measures to be taken to reduce the emissions during the use .
Justification
Following to Commission Decision 2008/753/EC of 18 September 2008 concerning the non-inclusion of methyl bromide in Annex I of Directive 91/414/EEC, the authorisation of methyl bromide will expire on 18 March 2009. It would be logical for the use of methyl bromide also to be prohibited in the context of this Regulation. Also in the context of QPS, sufficient alternatives exist, according to the 2004 survey of the Montreal protocol and the study of the Methyl Bromide Technical Options Committee.
Amendment  40 Proposal for a regulation Article 13 – paragraph 1
Text proposed by the Commission	Amendment
1. By way of derogation from Article 5(1), halons may be placed on the market and used for critical uses set out in Annex VI.	1. By way of derogation from Article 5(1), recovered, recycled and reclaimed halons may be placed on the market and used for critical uses set out in Annex VI, provided that these halons only come from registered national halonbanks.
Justification
The Placing on the Market should aim at recovered, reclaimed or recycled halons, since halons are no longer produced. Import of halons should only be allowed from or by registered national halonbanks, in line with the existing regulation. The advantage of this is that it will be easier to identify and react to possible regional imbalances in the availability of halons and to avoid future production of new halons. This is in line with the spirit of the Montreal Protocol.
Amendment  41 Proposal for a regulation Article 13 – paragraph 2 – subparagraph 1
Text proposed by the Commission	Amendment
2. The Commission  may  review the critical uses listed in Annex VI and adopt modifications and time-frames for phase-out  by defining end dates, taking into account the availability of both, technically and economically feasible alternatives or technologies that are acceptable from the standpoint of environment and health.	2. Each year the Commission shall review the critical uses listed in Annex VI and adopt modifications and time-frames for phase-out by defining end dates, taking into account, especially in the case of industries which have stringent safety and engineering performance requirements, the availability of both, technically and economically feasible alternatives or technologies that are acceptable from the standpoint of environment and health.
Justification
Account has to be taken of industries, such as the aviation industry, which have to follow stringent safety and engineering performance requirements. Any revision should take into account the availability of substitutes which reach the standards set out by these requirements.
Amendment  42 Proposal for a regulation Article 15 – paragraph 1
Text proposed by the Commission	Amendment
1. Imports of controlled substances which are not in a product other than a container used for the transportation or storage of these substances and of products and equipment, other than personal effects, containing or relying on those substances shall be prohibited.	1. Imports of controlled substances and of products and equipment, other than personal effects, containing or relying on those substances shall be prohibited.
Justification
To avoid misunderstanding, the wording is simplified in order to make clear that both product and separate substances are meant in this article.
Amendment  43 Proposal for a regulation Article 15 – paragraph 2 – point c
Text proposed by the Commission	Amendment
(c) controlled substances that are intended for destruction,	(c) controlled substances that are intended for destruction or for re-analysis and destruction,
Justification
Occasionally out-of-specification controlled substances require re-import for re-analysis and subsequent destruction.
Amendment  44 Proposal for a regulation Article 15 – paragraph 2 – point d
Text proposed by the Commission	Amendment
(d) methyl bromide that is intended for emergency uses referred to in Article 12(5) or, until 31 December 2014, for quarantine and pre-shipment applications referred to in Article 12(1),	deleted
Justification
Following the deletion of Article 12, this part should also be deleted. In line with Commission Decision 2008/753/EC of 18 September 2008 concerning the non-inclusion of methyl bromide in Annex I of Directive 91/414/EEC, the authorisation of methyl bromide will expire on 18 March 2009. It would be logical for the use of methyl bromide also to be prohibited in the context of this directive. Also in the context of QPS, sufficient alternatives exist, according to the 2004 survey of the Montreal protocol and the study of the Methyl Bromide Technical Options Committee.
Amendment  45 Proposal for a regulation Article 15 – paragraph 3
Text proposed by the Commission	Amendment
3.  Imports referred to in paragraph 2, with the exception of imports for temporary storage as referred to in Regulation (EC) No 450/2008, including transhipment, or for transit through the Community,  shall be subject to the presentation of an import licence.  Those  licences shall be issued by the Commission after verification of compliance with Articles  16 and 20 .	3. Imports referred to in paragraph 2, with the exception of imports for temporary storage for less than 30 days as referred to in Regulation (EC) No 450/2008, including transhipment, or for transit through the Community, shall be subject to the presentation of an import licence. Those licences shall be issued by the Commission after verification of compliance with Articles 16 and 20.
Justification
Temporary storage should be really for a limited time. It is therefore proposed to limit it to 30 days.
Amendment  46 Proposal for a regulation Article 16 – paragraph 1 – point b
Text proposed by the Commission	Amendment
(b) methyl bromide for either of the following uses:	deleted
(i) emergency uses referred to in Article 12(5),
(ii) until 31 December 2014 and subject to the quantitative limits for the placing on the market provided for in Article 12(2)  for quarantine and pre-shipment applications;
Justification
Following the deletion of article 12, this part should also be deleted. Following to Commission Decision 2008/753/EC of 18 September 2008 concerning the non-inclusion of methyl bromide in Annex I of Directive 91/414/EEC, the authorisation of methyl bromide will expire at 18 March 2009. It would be logic that the use of methyl bromide will also be prohibited in the context of this directive. Also in the context of QPS, enough alternatives exist, according to the 2004 survey of the Montreal protocol.
Amendment  47 Proposal for a regulation Article 17
Text proposed by the Commission	Amendment
1. Exports from the Community of  controlled substances which are not in a product other than a container used for the transportation or storage of these substances  or products and equipment, other than personal effects, containing  or relying on  those substances shall be prohibited.	1. Exports from the Community of controlled substances or products and equipment, other than personal effects, containing or relying on those shall be prohibited.
2.  The  prohibition  set out in paragraph 1  shall not apply to exports of:	2. The prohibition set out in paragraph 1 shall not apply to exports of:
(a) controlled substances to satisfy essential uses  referred to in Article 10(2) of Parties;	(a) controlled substances to satisfy essential uses of Parties;
(b) controlled substances to satisfy critical uses referred to in Article 13(1) of Parties;
(c) controlled substances to be used for feedstock ;
(d) controlled substances to be used as processing agents;
(e) products and equipment containing  or relying on  controlled substances produced  in accordance with  Article  10(7)  or imported under Article  15(2) point (d) and (e) ;	(e) products and equipment containing or relying on controlled substances produced in accordance with Article 10(7) or imported under Article 15(2) point (e);
(f) products and equipment containing  or relying on  halon to satisfy critical uses listed in Annex VI .
(g) virgin or reclaimed hydrochlorofluorocarbons for uses other than destruction.
3. By way of derogation from paragraph 1, the Commission may, following a request by a competent authority of a Member State and in accordance with the procedure referred to in Article 25(2), authorise the export of products and equipment containing hydrochlorofluorocarbons where it is demonstrated that in view of the economic value and the expected remaining lifetime of the specific good, the prohibition of export would impose a disproportionate burden on the exporter.
4. Exports  referred to in points (a) to (d) of paragraph 2  shall be subject to  licensing .  That  export  licence  shall be issued by the Commission to undertakings after verification of compliance with Article  20 .	4. Exports referred to in paragraph 2 shall be subject to licensing. That export licence shall be issued by the Commission to undertakings after verification of compliance with Article 20.
5. Exports  referred to in points (e) to (g) of paragraph 2 and in paragraph 3  shall be subject to  licensing   , except exports subsequently to transit or temporary storage without having been assigned another customs approved treatment or use as referred to in Regulation (EC) No 450/2008 . .  That export licence shall be issued by the Commission to the exporter after verification of compliance with Article 20 .
Justification
For ethical and environmental reasons the export of ozone depleting substances should be limited as far as possible, especially in the case of Halons and CFC’s. There is too high a risk that these substances with a high ozone-depleting potential (and a high greenhouse effect) could be released into the atmosphere.
There should be an exemption for production and export of CFCs for essential uses for manufacture of MDIs in Article 5 countries. The transition to alternatives is only now reaching completion in developed countries. It is possible that high quality pharmaceutical grade CFCs will be needed for a limited period after 2010 due to the difficulties of implementing the replacements. However, the Commission proposal bans production and export with no suitable exemptions.
Amendment  48 Proposal for a regulation Article 18 – paragraph 3 – point c – subpoint ii
Text proposed by the Commission	Amendment
(ii) the description and the CN code as laid down in Annex IV,	(ii) the description and the Combined Nomenclature (CN) code as laid down in Annex IV,
Justification
For the sake of clarity, the abbreviation used has to be introduced.
Amendment  49 Proposal for a regulation Article 18 – paragraph 3 – point d
Text proposed by the Commission	Amendment
(d) in the case of imports or exports of products and equipment containing or relying on halon or hydrochlorofluorocarbons	(d) In the case of imports or exports of products and equipment containing or relying on controlled substances:
(i) the type and nature of the equipment,	(i) the type and nature of the equipment,
(ii) for countable items the number of units and the quantity of the controlled substance per unit in metric kilograms,	(ii) for countable items the number of units and the quantity of the controlled substance per unit in metric kilograms,
(iii) for uncountable items the total net mass in metric kilograms,	(iii) for uncountable items the total net mass in metric kilograms,
(iv) the total quantity of halon  or hydrochlorofluorocarbons contained in metric kilograms,	(iv) the type and total quantity of each controlled substance,
(v) the country/countries of final destination of the products and equipment,	(v) the country/countries of final destination of the products and equipment,
(vi) whether the controlled substance contained is virgin, reclaimed or waste,	(vi) whether the controlled substance contained is virgin, reclaimed, recycled or waste,
(vii)  in the case of products and equipment containing or relying on halon,  a declaration that  they are  to be exported for a specific critical use listed in Annex VI ,	(vii)  in the case of products and equipment containing or relying on halon,  a declaration that  they are  to be exported for a specific critical use listed in Annex VI ,
(viii) in the case of products and equipment containing or relying on hydrochlorofluorocarbons, the reference to the Commission authorisation referred to in Article 17(3);	(viii) in the case of products and equipment containing or relying on hydrochlorofluorocarbons, the reference to the Commission authorisation referred to in Article 17(3);
Justification
Some exports of products or equipment may relate to other types of ODS, not only halon and HCFCs, and the text should reflect this.
For the sake of completeness, the equipment containing or relying on halon or hydrochlorofluorocarbons can work on virgin, reclaimed or recycled compounds, while if it contains waste compound – it is intended for destruction in line with Article 22.
Amendment  50 Proposal for a regulation Article 18 – paragraph 6 – introductory part
Text proposed by the Commission	Amendment
6.The Commission may share the submitted data so far as necessary in specific cases with competent authorities of the Parties concerned and may do either of the following:	6. The Commission may share the submitted data so far as necessary in specific cases with competent authorities of the Parties concerned and shall, within 30 working days after receipt of the request, do one of the following:
	(-a) approve the request for an import or export licence,
Justification
The establishment of a complex “prior-informed-consent” system as proposed under this Article could result in delays in shipments and consequential loss of orders. It is suggested that a “timeline” be defined within the regulation to ensure that trade can continue with no unreasonable delay.
Amendment  51 Proposal for a regulation Article 19 – paragraph 1
Text proposed by the Commission	Amendment
The Commission may adopt additional measures for the monitoring or control of controlled substances or new substances and of products and equipment containing or relying on controlled substances placed under temporary storage, including transhipment, in transit through and re-exported from the customs territory of the Community, on the basis of an evaluation of the potential risks of illegal trade linked to such movements, taking into account the socio-economic impacts of such measures.	The Commission may adopt additional measures to those requested under Recommendation 2001/331/EC or described in Article 18 of this Regulation for the monitoring or control of controlled substances or new substances and of products and equipment containing or relying on controlled substances, including those placed under temporary storage transhipment, in transit through and re-exported from the customs territory of the Community, and other activities, on the basis of an evaluation of the potential risks of illegal trade linked to such movements, taking into account the environmental benefits and socio-economic impacts of such measures, and the existence of feasible alternatives.
Justification
For the sake of clarity - first the main measures are to be clear and then additional measures can be mentioned. The scope needs to be defined more broadly, so that there will be the potential to address problems in addition to the specific situations listed in the Commission’s draft. In addition, it is necessary to consider the environmental benefits (for ozone, climate, etc.) and the feasibility of alternatives.
Amendment  52 Proposal for a regulation Article 21
Text proposed by the Commission	Amendment
The Commission shall make available a  list of products  and equipment which might contain   or rely on  controlled substances and of Combined Nomenclature codes for guidance of the Member States' customs authorities.	By 1 January 2010 the Commission shall make available for the guidance of the Member States’ customs authorities:
	(a) a list of products and equipment which might contain or rely on controlled substances,
	(b) a list of the substances, products, equipment and uses which are permitted under this Regulation and related conditions or requirements, and
	(c) a list of the substances, products and equipment that are not permitted under this Regulation.
	In each list the relevant CN codes shall be cited.
Justification
The Regulation shall apply from 1 January 2010. In order to be able to apply it, the Member States' customs authorities need this list.
A list of items which ‘might’ contain ODS is partly helpful, but Customs officers need much greater clarity in order to perform effectively – they need a list of substances and items which are permitted/authorised (and related requirements such as licenses), and a list of substances/ items which are not permitted.
Amendment  53 Proposal for a regulation Article 22 – paragraph 1
Text proposed by the Commission	Amendment
1. Controlled substances contained in refrigeration, air-conditioning and heat pump equipment, equipment containing solvents  or  fire protection systems and fire extinguishers shall, during the servicing and maintenance of equipment or before the dismantling or disposal of equipment, be recovered for destruction by technologies approved by the Parties,  listed in Annex VII,  or be recovered for recycling or reclamation.	1. Controlled substances (including blowing agents in foam) contained in refrigeration, air-conditioning and heat pump equipment, equipment containing solvents or fire protection systems and fire extinguishers, from all kind of users, including households, shall, during the servicing and maintenance of equipment or before the dismantling or disposal of equipment, be recovered for destruction by technologies approved by the Parties, listed in Annex VII.
	The Commission shall establish an Annex to this Regulation with performance standards which specify the level of recovery of ozone depleting substances in each category of product and equipment, and monitoring standards, reflecting best environmental practices. Those measures, designed to amend non-essential elements of this Regulation, inter alia by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 25(3).
Justification
The foam in fridges often contains more ODS than the refrigerant in fridges. Under Regulation 2037/2000 operators were supposed to recover the ODS (blowing agent) from foam, but some Member States have not yet implemented this requirement. It needs to be stated clearly as a requirement. Recycling and reclamation of used ODS should only be permitted for cases where the ODS will be used in permitted uses (i.e. the essential and critical uses authorised under the Regulation). The aim of this regulation is to eliminate non-essential uses of ODS. Although Regulation 2037/2000 requires recovery of ODS, the level of recovery in practice is unacceptably low in some operating facilities (e.g. some fridge recycling facilities) and there are large, technically unjustified differences in the performance of facilities across the EC. Performance standards need to specify the percentage of ODS to be recovered from various types of products and equipment, as well as minimum standards of technical monitoring.
Amendment  54 Proposal for a regulation Article 22 – paragraph 3 – subparagraph 2
Text proposed by the Commission	Amendment
The Commission shall establish an Annex to this Regulation with a list of products and equipment for which the recovery or destruction without prior recovery shall be considered technically and economically feasible, specifying, if appropriate, the technologies to be applied.	By 1 January 2011 the Commission shall establish an Annex to this Regulation with a list of products and equipment for which the recovery or destruction without prior recovery shall be considered technically and economically feasible, specifying, if appropriate, the technologies to be applied. Any proposal to establish such an Annex shall be accompanied and supported by a full economic assessment of the costs and benefits to all Member States.
Justification
It is important to ensure that the banked compounds are re-captured. To ensure this, dates are added in relation to the implementation measures.
Amendment  55 Proposal for a regulation Article 22 – paragraph 3 – subparagraph 3 a (new)
Text proposed by the Commission	Amendment
	In preparing its proposal for the Annex, the Commission shall consult Member States and all interested parties as to the products and equipment to be identified, the technical and economical feasibility of recovery or destruction without prior recovery and the technologies to be applied for each product and equipment identified with the aim of maximising capture of ozone depleting substances.
Justification
Given the different capacity of the Member States and the technical and economic challenges of dealing effectively with ODS banks, the Commission should formally call upon the experience and expertise of all interested parties in preparing the new Annex, including Member States, industry and NGOs.
Amendment  56 Proposal for a regulation Article 22 – paragraph 5 – subparagraph 2
Text proposed by the Commission	Amendment
The Commission shall evaluate the measures taken by the Member States  and may  in the light of this evaluation and of technical and other relevant information, as appropriate,  adopt  measures regarding those minimum qualification requirements.	The Commission shall evaluate the measures taken by the Member States. Special attention shall be paid to insulation foams in buildings and also in relation to waste legislation. By 1 January 2011 the Commission shall adopt measures regarding those minimum qualification requirements.
Justification
It is important to ensure that the banked compounds are re-captured. To ensure this, dates are added in relation to the implementation measures. Special attention should be paid to insulation foams in buildings, which should also be tackled in the future directive on construction and demolition waste.
Amendment  57 Proposal for a regulation Article 23
Text proposed by the Commission	Amendment
Leakages  and emissions  of controlled substances	Containment
1.  Undertakings shall take  all precautionary measures practicable to prevent and minimise  any  leakages of controlled substances. In particular, fixed equipment with a refrigerating fluid charge of more than 3 kg shall be checked for leakages annually.	1. Undertakings shall take  all precautionary measures practicable to prevent and minimise  any  leakages of controlled substances. In particular, operators of the following stationary applications: refrigeration, air conditioning and heat pump equipment, including their circuits, equipment containing solvents or fire protection systems and fire extinguishers, which contain controlled substances listed in Annex I, shall, using all measures which are technically feasible and do not entail disproportionate cost:
Member States shall define the minimum qualification requirements for the personnel involved. In the light of  an  evaluation  of these measures taken by the Member States  and of technical and other relevant information, the Commission, as appropriate,  may adopt  measures  regarding the harmonisation of  those minimum qualification requirements.	(a) prevent leakage of these gases; and
Those measures, designed to amend non-essential elements of this Regulation, inter alia by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 25(3).	(b) repair any detected leakage as soon as possible, and in any event within 14 days.
2.  Undertakings shall take  all precautionary measures practicable to prevent and minimise  any  leakages of methyl bromide from fumigation installations and  other  operations in which methyl bromide is used. Member States shall define the minimum qualification requirements for the personnel involved.	2. Operators of the applications referred to in paragraph 1 shall ensure that they are checked for leakage by certified personnel who comply with the minimum requirements of Article 5 of Regulation EC No 842/2006, or similar qualification, according to the following schedule:
3.  Undertakings shall take  all precautionary measures practicable to prevent and minimise  any  leakages  and emissions  of controlled substances used as feedstock and as processing agents.	(a) applications containing 3 kg or more of controlled substances shall be checked for leakage at least once every 12 months; however equipment with hermetically sealed systems, which are labelled as such and contain less than 6 kg of controlled substances, shall be checked at least once every 24 months;
4.  Undertakings shall take  all precautionary measures practicable to prevent and minimise any leakage  and emissions  of controlled substances inadvertently produced in the course of the manufacture of other chemicals.	(b) applications containing 30 kg or more of controlled substances shall be checked for leakage at least once every six months;
5.  The Commission may establish the technologies or practices to be used by undertakings to prevent and minimise any leakage and emissions of controlled substances.	(c) applications containing 300 kg or more of controlled substances shall be checked for leakage at least once every three months.
Those measures, designed to amend non-essential elements of this Regulation, inter alia by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 25(3).	The applications shall be checked for leakage within one month after a leak has been detected and repaired to ensure that the repair has been effective.
	For the purposes of this paragraph, ‘checked for leakage’ means that the equipment or system is examined for leakage using direct or indirect measuring methods, focusing on those parts of the equipment or system most likely to leak. The direct and indirect measuring methods of checking for leakage shall be specified in the standard checking requirements referred to in paragraph 7.
	3. In the case of fire protection systems where there is an existing inspection regime in place to meet ISO 14520 standard, these inspections may also fulfil the obligations of this Regulation as long as those inspections are at least as frequent.
	4. Operators of the applications referred to in paragraph 1, containing 3 kg or more of controlled substances, shall maintain records on the quantity and type of controlled substances installed, any quantities added and the quantity recovered during servicing, maintenance and final disposal. They shall also maintain records of other relevant information including the identification of the company or technician who performed the servicing or maintenance, as well as the dates and results of the checks carried out under paragraphs 2, 3 and 4 and relevant information specifically identifying the separate stationary equipment of applications referred to in paragraph 2(b) and (c). These records shall be made available on request to the competent authority and to the Commission.
	5. By 1 January 2011, the Commission shall establish, in accordance with the procedure referred to in Article 25(3), the standard leakage checking requirements for each of the applications referred to in paragraph 1 of this Article.
	6. On the basis of the information received from Member States and in consultation with the relevant sectors, the Commission may establish minimum requirements and the conditions for mutual recognition in accordance with the procedure referred to in Article 25(3) in respect of training programmes and certification for the relevant personnel involved in installation, maintenance or servicing of the equipment and systems covered by Article 23(1) as well as for the personnel involved in the activities provided for in Articles 22 and 23.
Justification
Article 3 of the F-gases regulation EC No 842/2006 has more precise provisions in relation to leakages and emissions of controlled substances. For consistency reasons, for improving the quality of the text and for having more safeguards against emissions, it is better to implement the same text in this regulation.
Amendment  58 Proposal for a regulation Article 24
Text proposed by the Commission	Amendment
1. The production,  import  , placing on the market, use  and export of new substances in  Part A of  Annex II are prohibited. This prohibition does not apply to new substances if they are used as feedstock, for laboratory and analytical uses, to imports for temporary storage including transhipment, and to exports subsequently to transit or temporary storage without having been assigned another customs approved treatment or use as referred to in Regulation (EC) No 450/2008.	1. The production,  import  , placing on the market, use  and export of new substances in  Part A of  Annex II are prohibited. This prohibition does not apply to new substances if they are used as feedstock, for laboratory and analytical uses, to imports for temporary storage including transhipment, and to exports subsequently to transit or temporary storage without having been assigned another customs approved treatment or use as referred to in Regulation (EC) No 450/2008.
2. The Commission  may  include in  Part A of  Annex II any substances that are not controlled substances but that are found by the Scientific Assessment Panel under the Protocol to have a significant ozone-depleting potential,  and determine  possible exemptions from paragraph 1.  Those measures, designed to amend non-essential elements of this Regulation, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 25(3) .	2. The Commission may make proposals, as appropriate, to include in Part A of Annex II any substances that are not controlled substances but that are found by the Scientific Assessment Panel under the Protocol to have a significant ozone-depleting potential, or which are extensively produced, used and emitted, and determine possible exemptions from paragraph 1.Those measures, designed to amend non-essential elements of this Regulation, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 25(3).
3. In the light of relevant scientific information, the Commission may include in Part B of Annex II any substances that are not controlled substances but that are found to have an ozone-depleting potential. Those measures, designed to amend non-essential elements of this Regulation, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 25(3).	3. In the light of relevant scientific information, the Commission may include in Part B of Annex II any substances that are not controlled substances but that are found to have an ozone-depleting potential of 0,001 or more and an atmospheric life-time greater than sixty days. Those measures, designed to amend non-essential elements of this Regulation, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 25(3). Substances reported by the Parties under Decisions XIII/5, X/8 and IX/24 of the Protocol shall also be added to Annex II, Part B.
Justification
This paragraph allows the Commission to include a new substance in Annex II based solely on its ozone-depleting potential. Such inclusion must be justified by other parameters that affect the ozone layer, such as the use of the product and its emissions. There are many halogenated short-lived substances that have a theoretical ozone depletion potential. Short-lived substances with an atmospheric lifetime of less than 120 days have been shown to be unable to reach the stratosphere in substantial quantities to have a significant long-lasting impact on the ozone layer.
Following Decisions XIII/5, X/8 & IX/24 of the Montreal Protocol, the Parties have reported a number of new and suspected ozone depleting substances. Decision IX/24 states: “That any Party may bring to the attention of the Secretariat the existence of new substances which it believes have the potential to deplete the ozone layer and have the likelihood of substantial production, but which are not listed as controlled substances under Article 2 of the Protocol...” - These substances should be added to Annex II, Part B so that their production and use can be monitored appropriately.
Amendment  59 Proposal for a regulation Article 27 – paragraph 5 – point c a (new)
Text proposed by the Commission	Amendment
	(ca) data from self-monitoring for emissions and leakage occurred during the destruction.
Justification
To ensure better protection of the environment and to facilitate application of Article 19 of this regulation.
Amendment  60 Proposal for a regulation Article 28
Text proposed by the Commission	Amendment
	-1. Member States shall ensure that inspections are performed in compliance with Recommendation 2001/331/EC of the European Parliament and of the Council of 4 April 2001 providing for minimum criteria for environmental inspections in the Member States1.
1. Member States shall conduct  inspections on the compliance of undertakings with this Regulation, following a documented, risk-based approach, including inspections on imports and exports of controlled substances as well as of products and equipment containing or relying on those substances. The competent authorities of the Member States shall carry out the investigations which the Commission considers necessary under this Regulation.	1. Member States shall conduct  inspections on the compliance of undertakings with this Regulation, following a documented, risk-based approach, including inspections on imports and exports of controlled substances as well as of products and equipment containing or relying on those substances. The competent authorities of the Member States shall carry out the investigations which the Commission considers necessary under this Regulation.
	1a. Notwithstanding paragraph 2, Member states may also conduct random checks on imports and exports of controlled substances.
2. Subject to the agreement of the Commission and of the competent authority of the Member State within the territory of which the investigations are to be made, the officials of the Commission shall assist the officials of that authority in the performance of their duties.	2. Subject to the agreement of the Commission and of the competent authority of the Member State within the territory of which the investigations are to be made, the officials of the Commission shall assist the officials of that authority in the performance of their duties.
3. In carrying out the tasks assigned to it by this Regulation, the Commission may obtain all the information from the governments and competent authorities of the Member States and from undertakings. When requesting information from an undertaking the Commission shall at the same time forward a copy of the request to the competent authority of the Member State within the territory of which the undertaking's seat is situated.	3. In carrying out the tasks assigned to it by this Regulation, the Commission may obtain all the information from the governments and competent authorities of the Member States and from undertakings. When requesting information from an undertaking the Commission shall at the same time forward a copy of the request to the competent authority of the Member State within the territory of which the undertaking's seat is situated.
4. The Commission shall take appropriate action to promote adequate exchange of information and cooperation between national authorities and between national authorities and the Commission.	4. The Commission shall take appropriate action to promote adequate exchange of information and cooperation between national authorities and between national authorities and the Commission.
The Commission shall take appropriate steps to protect the confidentiality of information obtained under this Article.	The Commission shall take appropriate steps to protect the confidentiality of information obtained under this Article.
	4a. At the request of another Member State, a Member State may take enforcement action against persons suspected of being engaged in the illegal shipment of controlled substances and who are on the territory of that Member State.
	_______
	1 OJ L 118, 4.4.2001, p. 41
Justification
It is important that Recommendation 2001/331/EC will be followed with regards to inspections. Member States should cooperate and also use random inspections. Good inspections will be necessary in order to achieve real success with this regulation.
Amendment  61 Proposal for a regulation Annex II – table
Text proposed by the Commission
Part A: Substances restricted under Article 24(1)
Substance Ozone-depleting potential  CBr2 F2 Dibromodifluoromethane (halon-1202) 1,25
Part B: Substances to be reported on under Article 26
Substance Ozone-depleting potential  C3H7Br 1-Bromopropane (n-propyl bromide) 0,02 – 0,10 C2H5Br Bromoethane (ethyl bromide) 0,1 – 0,2 CF3I Trifluoroiodomethane (trifluoromethyl iodide) 0,01 – 0,02
Amendment
Part A: Substances restricted under Article 24(1)
Substance Ozone-depleting potential  CBr2 F2 Dibromodifluoromethane (halon-1202) 1,25 C3H7Br 1-Bromopropane (n-propyl bromide) 0,02 – 0,10
Part B: Substances to be reported on under Article 26
Substance Ozone-depleting potential  C2H5Br Bromoethane (ethyl bromide) 0,1 – 0,2 CF3I Trifluoroiodomethane (trifluoromethyl iodide) 0,01 – 0,02
Justification
The 2006 UNEP/WMO ozone assessment concludes that "the role of very short-lived substances in ozone depletion is of greater importance than previously assessed". It is now believed that very short-lived halogenated substances such as normal-propyl bromide (n-PB), which is almost exclusively anthropogenic, significantly contribute to total stratospheric bromine and thus have an adverse effect on stratospheric ozone due to the big quantities produced. The Commission proposal included n-PB under Annex II, Part B (substances to be reported), but it is needed to be under Annex II, Part A (substances restricted).
Amendment  62 Proposal for a regulation Annex II – Part B – Table – new rows
Amendment
C4Cl6 Hexachlorobutadiene 0,07   1,1,1-trichloro-2,2,2-trifluoroethane (or R.113a) 0,65 C10H6BrOCH3 6-bromo-2-methoxynaphtalene (or bromo-methoxy-naphtalene or BMN) To be identified CH2ClBr or C 3H6BrCl 1-bromo-3-chloropropane To be identified CH2Br2 Dibromomethane To be identified C2H4Br2 Dibromoethane To be identified C2H4BrCl Bromochloroethane To be identified C2H5Br Bromoethane To be identified C3H6Br2 1,3-Dibromopropane To be identified C3H7Br 2-Bromopropane To be identified C4Cl4F6, CClF2CClFCClFCClF 2 2,2,3,3-Tetrachlorohexafluorobutane   To be identified
Justification
Following Decisions XIII/5, X/8 & IX/24 of the Montreal Protocol, the Parties have reported a number of new and suspected ozone depleting substances. Decision IX/24 states: “That any Party may bring to the attention of the Secretariat the existence of new substances which it believes have the potential to deplete the ozone layer and have the likelihood of substantial production, but which are not listed as controlled substances under Article 2 of the Protocol...” - These substances should be added to Annex II, Part B so that their production and use can be monitored appropriately.
Amendment  63 Proposal for a regulation Annex VII – table – column 2 – row 3 – heading
Text proposed by the Commission	Amendment
Annex A, Gp. IAnnex B Annex C, Gp. I	Annex I, Gp. IAnnex I, Gp.II, Gp.IV, Gp. V Annex I, Gp. VIII
Justification
For the sake of clarity – enumeration introduced by this Regulation has to be followed, instead of the enumeration of the Montreal Protocol.
Amendment  64 Proposal for a regulation Annex VII – table – column 3 – row 3 – heading
Text proposed by the Commission	Amendment
Halon(Annex A, Gp. II)	Halon(Annex I, Gp. III)
Justification
For the sake of clarity – enumeration introduced by this Regulation has to be followed, instead of the enumeration of the Montreal Protocol.

• [1]  Not yet published in OJ.
• [2]  OJ C 77, 28.3.2002, p. 1.

EXPLANATORY STATEMENT

Introduction

Our atmosphere is created in such a way that two different layers protect us. The lower part of the atmosphere (tropospheric layer) contains an important beneficial concentration of carbon dioxide that holds the sun heat (however a higher concentration of the CO2 causes an enhanced greenhouse effect with climate change as a possible result). The second layer is the stratospheric ozone layer that shields life on earth from harmful ultraviolet radiation from the sun. In this regulation, the protection of the stratospheric ozone layer is primary targeted, but climate change is also avoided, because the banned substances have not only an important Ozone Depleting Potential (ODP) but equally have a Global Warming Potential (GWP).

In the early 1980s, scientists observed a significant decrease in the concentration of ozone in the stratosphere over the Antarctic, which became widely known as the “ozone hole”. At its peak – during spring in the turn of the century – the ozone loss was most severe around the poles, although concentrations were significantly reduced in other places as well. Increased UV radiation has an adverse impact on human health, e.g. by increasing the incidence of skin cancers and cataracts, and on ecosystems.

As early as 1987, governments agreed on the Montreal Protocol on Substances that Deplete the Ozone Layer, thereby starting the phase-out of ozone-depleting substances (ODS) in all signatories following a set timetable. The main ODS are chlorofluorocarbons (CFCs), halons, hydrofluorocarbons (HCFCs) and methyl bromide. In 2007, the Parties (including the European Community) celebrated the twentieth anniversary of the Montreal Protocol, hailing it as one of the most successful of all international environmental agreements. By then, all 191 Parties had achieved a 95% reduction in consumption of ODS compared with the baselines set. Reductions were highest (99.2%) in industrialised countries and somewhat lower (80%) in developing countries.

In its latest report, released in 2007, the Scientific Assessment Panel (SAP) established under the Montreal Protocol confirmed that the ozone layer is slowly recovering thanks to the control measures introduced by the Protocol – albeit 10 to 15 years behind the projections in its earlier 2002 report. Average and Arctic ozone levels are now expected to recover by 2050 and the Antarctic ozone hole between 2060 and 2075.

According to UNEP, controls introduced under the Montreal Protocol will avoid millions of fatal skin cancers and tens of millions of non-fatal skin cancers and cataracts worldwide. Furthermore, these controls will help to avoid greenhouse gas emissions equivalent to more than 100 billion tonnes of CO2 between 1990 and 2010.

By 2010, ODS emissions will account for less than 5% of global projected CO2 emissions compared with nearly 50% in 1990. In its 2007 report, SAP warned the Parties that, despite the successes, continued vigilance was required to keep to the newly projected timetable for recovery of the ozone layer, also taking account of the remaining uncertainties, notably about the impact of climate change.

Commission proposal

Regulation (EC) No 2037/2000 on substances that deplete the ozone layer (“the Regulation”) is the European Communities’ main instrument for implementing the Montreal Protocol. The recast proposal generally maintains the scope of the existing Regulation. The proposed Regulation would apply to substances listed in Annexes I and II. Annex II provides flexibility to establish certain monitoring measures for substances found to have ozone-depleting potential or control measures where this potential is significant.

The proposal follows the structure of Regulation (EC) No 2037/2000, but adds a new chapter on derogations from the bans on production, placing on the market and use, which were originally spread between various provisions on the phase-out schedules for controlled substances and products. This change makes the text more readable and thereby facilitates application of the legislation.

The main objectives of this revision are: (1) to simplify and recast Regulation (EC) No 2037/2000 whilst at the same time reducing any unnecessary administrative burden in line with the Commission’s commitment to better regulation; (2) to ensure compliance with the Montreal Protocol as adjusted in 2007; and (3) to make sure that the future key challenges are addressed, in order to ensure the timely recovery of the ozone layer and to avoid adverse impacts on human health and ecosystems.

These key challenges are:

1.  Release of “banked” ODS/GHG emissions into the atmosphere – Because the Protocol has been focusing on banning ODS production, significant amounts of ODS remain stored or “banked” in products and equipment (e.g. in insulation foams, refrigerants and air-conditioning systems). Estimates suggest that by 2015 these global banks will add up to 2 million ozone-depleting potential (ODP) tonnes or 13.4 billion tonnes of CO2eq – hence the need for further action. ODS banks in the EU could add up to approximately 700 000 ODP tonnes in 2010, equivalent to 5 billion tonnes of CO2, although the current estimates are subject to a large degree of uncertainty. For destruction of controlled substances a legal framework is set in article 22 of the Commission proposal. Ways must be found to make these provisions binding and effective in practice.

2.  Exempted uses of ODS – The Protocol provides for a degree of flexibility on use of controlled ODS, e.g. where no technically or economically viable alternatives are yet available or for certain applications, such as use of methyl bromide for quarantine and pre-shipment purposes or feedstock (article 12). According to the a recent Commission Decision (2008/753/EC) concerning the non-inclusion of methyl bromide in Annex I of Directive 91/414/EEC (concerning the placing of plant protection products on the market) should result in a direct prohibition of the use of methyl bromide. Halons are even of much more concern because they have the highest potential to deplete the ozone layer (and also a very high greenhouse effect). The use of halons should therefore be restricted as much as possible, which was already the intention in the existing Regulation. However the revision of Annex VI did not take place until now. It is very important that this will be done in the near future (see article 13 of the Commission proposal). As alternatives are now available to replace halons in fire protection applications, end dates for existing applications can now be set. In article 11 the deadline for the HCFCs production in Europe for export is proposed to be brought forward (from 2025 to 2020) according to the Montreal Protocol. The review study by Milieu Ltd and Ecosphere Lda proposed to be at 2015, but the Commission have not adopted this suggestion. To be more ambitious the deadline should be earlier.

3.  New ODS – New scientific evidence has revealed that the ODP of certain chemical substances not currently controlled by the Protocol is substantially higher, whilst marketing of these substances is growing rapidly. The 2006 UNEP/WMO ozone assessment concludes that "the role of very short-lived substances in ozone depletion is of greater importance than previously assessed”. It is now believed that very short-lived halogenated substances such as normal-propyl bromide (n-PB), which is almost exclusively anthropogenic, significantly contribute to total stratospheric bromine and thus have an adverse effect on stratospheric ozone. The Commission proposal included n-PB under Annex II, Part B (substances to be reported), but it is needed to be under Annex II, Part A (substances restricted).

Another issue is the export ban in article 17. It is very important that there are lesser exemptions on this export ban. Many exemptions will be hard to check and to maintain in practice. For ethical and environmental reasons the export of ozone depleting substances should be limited as far as possible, especially in the case of Halons and HCFC’s. There is a too high risk that these substances with a high ozone depleting potential (and a high greenhouse effect) can be released into the atmosphere.

Regarding inspections a stronger structure, in line with the recommendation on environmental inspections, will be necessary in order to reach the real decrease of ODS and an increase of the thickness of the ozone layer.

The proposed amendments of this report aims to improve the Regulation further in line with the above mentioned challenges. In this way the EU can be more ambitious for itself and take a leading role in the world. This will protect us more against the destructive effects of too much UV-radiation, and decrease the greenhouse effect/climate change.

ANNEX: LETTER FROM THE COMMITTEE ON LEGAL AFFAIRS

COMMITTEE ON LEGAL AFFAIRS

CHAIRMAN

Ref.: D(2008) 75675

Mr Miroslav OUZKÝ

Chair of the Committee on Environment,

Public Health and Food Safety

ASP 05F69

Brussels

Subject:        Proposal for a regulation of the European Parliament and of the Council on substances that deplete the ozone layer (recast)

                    (COM(2008)505 - C6-0297/2008 - 2008/0165(COD

Dear Sir,

The Committee on Legal Affairs, which I am honoured to chair, has examined the proposal referred to above, pursuant to Rule 80a on Recasting, as introduced into the Parliament's Rules of Procedure by its Decision of 10 May 2007.

Paragraph 3 of that Rule reads as follows:

"If the committee responsible for legal affairs considers that the proposal does not entail any substantive changes other than those identified as such in the proposal, it shall inform the committee responsible.

In such a case, over and above the conditions laid down in Rules 150 and 151, amendments shall be admissible within the committee responsible only if they concern those parts of the proposal which contain changes.

However, amendments to the parts which have remained unchanged may be admitted by way of exception and on a case-by-case basis by the chairman of the above committee if he considers that this is necessary for pressing reasons relating to the internal logic of the text or because the amendments are inextricably linked to other admissible amendments. Such reasons must be stated in a written justification to the amendments".

Following the opinion of the Legal Service, whose representatives participated in the meetings of the Consultative Working Party examining the recast proposal, and in keeping with the recommendations of the draftsperson, the Committee on Legal Affairs considers that the proposal in question does not include any substantive changes other than those identified as such in the proposal and that, as regards the codification of the unchanged provisions of the earlier acts with those changes, the proposal contains a straightforward codification of the existing texts, without any change in their substance.

However, pursuant to Rules 80a(2) and 80(3), the Committee on Legal Affairs considered that the technical adaptations suggested in the opinion of the abovementioned Working Party were necessary in order to ensure that the proposal complied with the codification rules and that they did not involve any substantive change to the proposal.

In conclusion, after discussing it at its meeting of 15 December 2008, the Committee on Legal Affairs, by 13 votes in favour[1] and no abstentions, recommends that your Committee, as the committee responsible, proceed to examine the above proposal in keeping with its suggestions and in accordance with Rule 80a.

Yours faithfully,

Giuseppe GARGANI

Encl.: Opinion of the Consultative Working Party

• [1]  The following Members were present: Giuseppe Gargani (Chairman), Bert Doorn, Othmar Karas, Klaus-Heiner Lehne, Manuel Medina Ortega, Diana Wallis, Monica Frassoni, Francesco Enrico Speroni,, Jean-Paul Gauzès, Georgios Papastamkos, Costas Botopoulos, Ieke van den Burg, Eva Lichtenberger.

ANNEX: OPINION OF THE CONSULTATIVE WORKING PARTY OF THE LEGAL SERVICES OF THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE COMMISSION

	GROUPE CONSULTATIF DES SERVICES JURIDIQUES

                     Brussels,

OPINION

FOR THE ATTENTION OF           THE EUROPEAN PARLIAMENT

                                                       THE COUNCIL

                                                       THE COMMISSION

Proposal for a regulation of the European Parliament and of the Council on substances that deplete the ozone layer

COM(2008) 505 final of 1.8.2008 - 2008/0165 (COD)

Having regard to the Inter-institutional Agreement of 28 November 2001 on a more structured use of the recasting technique for legal acts, and in particular to point 9 thereof, the Consultative Working Party consisting of the respective legal services of the European Parliament, the Council and the Commission met on 1, 2, 8, 9 and 16 October 2008 for the purpose of examining the aforementioned proposal submitted by the Commission.

At those meetings[1], an examination of the proposal for a regulation of the European Parliament and of the Council recasting Regulation (EC) No 2037/2000 of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer resulted in the Consultative Working Party’s establishing, by common accord, as follows.

1. As regards the explanatory memorandum, in order to be drafted in full compliance with the relevant requirements laid down by the Inter-institutional Agreement such a document should have specified which provisions of the earlier act remain unchanged in the proposal, as is provided for under point 6(a)(iii) of that agreement.

2) The following parts of text of the recast proposal should have been identified by using the grey-shaded type generally used for marking substantive changes:

- in the first citation, the reference made to Article 133 EC;

- in recital 9 and in Article 10(2), the words "laboratory and analytical", which have been presented between adaptation arrows;

- in recital 11, the words "from 2005 to 2008", which are comprised in a wording presented between adaptation arrows;

- in Article 2(1), the words "controlled substances, to new substances and", presented between adaptation arrows;

- in Article 3(1), the words "or regional economic integration organisation", which have already been marked with double strikethrough;

- in Article 3(21), the words "or reclaims", which have been presented between adaptation arrows;

- in Article 8(4), first subparagraph, the replacing of the word "shall" (having been marked with double strikethrough) with the word "may" (having been presented between adaptation arrows);

- in the wording of Article 7(a) of Regulation (EC) No 2037/2000, having been entirely marked with double strikethrough and appearing in the recast text between the wording of Article 16(1), second subparagraph, introductory words, and that of Article 16(1)(a), the words "and VIII";

- in Article 16(1)(a), the words "laboratory and analytical" and "referred to in Article 10", which have been presented between adaptation arrows;

- the entire wording of Article 7(d), having been marked with double strikethrough and appearing in the recast text immediately after Article 16(1)(c);

- in Article 17(2)(a), in Article 27(2)(d) and in Article 27(3)(a), the words "or critical" (already marked with double strikethrough);

- in Article 17(2)(e), the replacing of the article number "7(b)" (having been marked with double strikethrough) with "15(2) point (d) and (e)" (having been presented between adaptation arrows);

- in Article 17(4), the words "referred to in points (a) to (d) of paragraph 2", presented between adaptation arrows;

- in Article 17(5), the words "referred to in points (e) to (g) of paragraph 2 and in paragraph 3", presented between adaptation arrows;

- in Article 18(5), the words "or composition", presented between adaptation arrows;

- in Article 20(3), the words "or relying on", which are comprised in a wording presented between adaptation arrows;

- in Article 22(4), the words "laboratory and analytical", which have been presented between adaptation arrows;

- the entire wording of Article 16(7) of Regulation (EC) No 2037/2000, having been marked with double strikethrough and appearing in the recast proposal immediately after the text of Article 22;

- the entire wording of Article 19(1)(b), second indent, of Regulation (EC) No 2037/2000, having been marked with double strikethrough and appearing in the recast text between the wording of Article 27(3)(a) and that of Article 27(3)(b);

- in Article 27(4)(a), the words "including substances which are re-exported under the inward processing procedure", having been marked with double strikethrough;

- in Article 28(3), the words "together with a statement of the reasons why that information is required", having been marked with double strikethrough.3) In Article 8(4), second subparagraph, as well as in the title of Annex III, the reference made to "Article 2(8)" should be adapted so as to read as a reference made to "Article 3(8)";

- in Article 31, second subparagraph, the date of entry into force "1 January 2010", which was presented between adaptation arrows.

4) In Article 12(2), second subparagraph, the indication of the years "1996, 1997 and 1998" should have been replaced by the indication "2005 to 2008", which should have been identified with grey shaded type.

5) In Article 18(4), the reference made to "paragraph 2" should read as a reference made to "paragraph 3".

6) In Article 27(2)(c) and in Article 27(3)(a), the reference made to "Article 10(5)" should read as a reference made to "Article 10(6)".

7) In Article 27(2)(d), the reference made to "Article 10(7)" should read as a reference made to "Article 10(8)".

8) In Article 27(8), the reference made to "Article 18(2)(vii)" should read as a reference made to "Article 18(3)(d)".

In consequence, examination of the proposal has enabled the Consultative Working Party to conclude, without dissent, that the proposal does not comprise any substantive amendments other than those identified as such therein or in the present opinion. The Working Party also concluded, as regards the codification of the unchanged provisions of the earlier act with those substantive amendments, that the proposal contains a straightforward codification of the existing texts, without any change in their substance.

C. PENNERA                       J.-C. PIRIS                           C.-F.DURAND

Jurisconsult                            Jurisconsult                            actg. Director General

• [1]  The Consultative Working Party had at its disposal the English, French and German language versions of the proposal and worked on the basis of the English version, being the master-copy language version of the text under discussion.

OPINION OF THE COMMITTEE ON LEGAL AFFAIRS ON THE LEGAL BASIS

2004		2009

Committee on Legal Affairs

The Chair

12.2.2009

Mr Miroslav Ouzký

Chair

Committee on the Environment, Public Health and Food Safety

BRUSSELS

Subject:           Opinion on the legal basis of the proposal for a Regulation of the European Parliament and of the Council on substances that deplete the ozone layer (recast) (COM(2008)0505 – 2008/0165 (COD))

Dear Mr Chairman,

Background

On 23 September 2008 the abovementioned proposal for recasting was referred to the Committee on Legal affairs, as the committee responsible for opinion, pursuant to Rule 80a of the Rules of Procedure[1].

Following the opinion of the Legal Service, whose representatives participated in the meetings of the Consultative Working Party examining the recast proposal, and in keeping with the recommendations of the draftsperson, the Committee on Legal Affairs considered that the proposal in question did not include any substantive changes other than those identified as such in the proposal or in the opinion of the Working Party and that, as regards the codification of the unchanged provisions of the earlier acts with those changes, the proposal contained a straightforward codification of the existing texts, without any change in their substance.

Furthermore, pursuant to Rules 80a(2) and 80(3), the Committee on Legal Affairs considered that the technical adaptations suggested in the opinion of the abovementioned Working Party were necessary in order to ensure that the proposal complied with the recasting rules.

After discussing it at its meeting of 15 December 2008, the Committee on Legal Affairs, by 13 votes in favour[2] and no abstentions, recommended that the Committee on the Environment, Public Health and Food Safety, as the committee responsible, proceed to examine the above proposal in keeping with its suggestions and in accordance with Rule 80a.

By letter of 23 September 2008 you asked the Committee on Legal Affairs pursuant to Rule 35(2) to consider whether the legal basis of the above Commission proposal was valid.

The committee considered the above question at its meeting of 12 February 2009.

The legal bases under consideration:

Article 175(1) of the EC Treaty reads as follows:

"1. The Council, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee and the Committee of the Regions, shall decide what action is to be taken by the Community in order to achieve the objectives referred to in Article 174 [3]."

Article 133 of the EC Treaty reads as follows:

"1. The common commercial policy shall be based on uniform principles, particularly in regard to changes in tariff rates, the conclusion of tariff and trade agreements, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies.

2. The Commission shall submit proposals to the Council for implementing the common commercial policy.

3. Where agreements with one or more States or international organisations need to be negotiated, the Commission shall make recommendations to the Council, which shall authorise the Commission to open the necessary negotiations. The Council and the Commission shall be responsible for ensuring that the agreements negotiated are compatible with internal Community policies and rules.

The Commission shall conduct these negotiations in consultation with a special committee appointed by the Council to assist the Commission in this task and within the framework of such directives as the Council may issue to it. The Commission shall report regularly to the special committee on the progress of negotiations.

The relevant provisions of Article 300 shall apply.

4. In exercising the powers conferred upon it by this Article, the Council shall act by a qualified majority.

5. Paragraphs 1 to 4 shall also apply to the negotiation and conclusion of agreements in the fields of trade in services and the commercial aspects of intellectual property, in so far as those agreements are not covered by the said paragraphs and without prejudice to paragraph 6.

By way of derogation from paragraph 4, the Council shall act unanimously when negotiating and concluding an agreement in one of the fields referred to in the first subparagraph, where that agreement includes provisions for which unanimity is required for the adoption of internal rules or where it relates to a field in which the Community has not yet exercised the powers conferred upon it by this Treaty by adopting internal rules.

The Council shall act unanimously with respect to the negotiation and conclusion of a horizontal agreement insofar as it also concerns the preceding subparagraph or the second subparagraph of paragraph 6.

This paragraph shall not affect the right of the Member States to maintain and conclude agreements with third countries or international organisations in so far as such agreements comply with Community law and other relevant international agreements.

6. An agreement may not be concluded by the Council if it includes provisions which would go beyond the Community's internal powers, in particular by leading to harmonisation of the laws or regulations of the Member States in an area for which this Treaty rules out such harmonisation.

In this regard, by way of derogation from the first subparagraph of paragraph 5, agreements relating to trade in cultural and audiovisual services, educational services, and social and human health services, shall fall within the shared competence of the Community and its Member States. Consequently, in addition to a Community decision taken in accordance with the relevant provisions of Article 300, the negotiation of such agreements shall require the common accord of the Member States. Agreements thus negotiated shall be concluded jointly by the Community and the Member States.

The negotiation and conclusion of international agreements in the field of transport shall continue to be governed by the provisions of Title V and Article 300.

7. Without prejudice to the first subparagraph of paragraph 6, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may extend the application of paragraphs 1 to 4 to international negotiations and agreements on intellectual property in so far as they are not covered by paragraph 5."

Article 300 of the EC Treaty reads as follows:

1. Where this Treaty provides for the conclusion of agreements between the Community and one or more States or international organisations, the Commission shall make recommendations to the Council, which shall authorise the Commission to open the necessary negotiations. The Commission shall conduct these negotiations in consultation with special committees appointed by the Council to assist it in this task and within the framework of such directives as the Council may issue to it.

In exercising the powers conferred upon it by this paragraph, the Council shall act by a qualified majority, except in the cases where the first subparagraph of paragraph 2 provides that the Council shall act unanimously.

2. Subject to the powers vested in the Commission in this field, the signing, which may be accompanied by a decision on provisional application before entry into force, and the conclusion of the agreements shall be decided on by the Council, acting by a qualified majority on a proposal from the Commission. The Council shall act unanimously when the agreement covers a field for which unanimity is required for the adoption of internal rules and for the agreements referred to in Article 310.

By way of derogation from the rules laid down in paragraph 3, the same procedures shall apply for a decision to suspend the application of an agreement, and for the purpose of establishing the positions to be adopted on behalf of the Community in a body set up by an agreement, when that body is called upon to adopt decisions having legal effects, with the exception of decisions supplementing or amending the institutional framework of the agreement.

The European Parliament shall be immediately and fully informed of any decision under this paragraph concerning the provisional application or the suspension of agreements, or the establishment of the Community position in a body set up by an agreement.

3. The Council shall conclude agreements after consulting the European Parliament, except for the agreements referred to in Article 133(3), including cases where the agreement covers a field for which the procedure referred to in Article 251 or that referred to in Article 252 is required for the adoption of internal rules. The European Parliament shall deliver its opinion within a time limit which the Council may lay down according to the urgency of the matter. In the absence of an opinion within that time limit, the Council may act.

By way of derogation from the previous subparagraph, agreements referred to in Article 310, other agreements establishing a specific institutional framework by organising cooperation procedures, agreements having important budgetary implications for the Community and agreements entailing amendment of an act adopted under the procedure referred to in Article 251 shall be concluded after the assent of the European Parliament has been obtained.

The Council and the European Parliament may, in an urgent situation, agree upon a time limit for the assent.

4. When concluding an agreement, the Council may, by way of derogation from paragraph 2, authorise the Commission to approve modifications on behalf of the Community where the agreement provides for them to be adopted by a simplified procedure or by a body set up by the agreement; it may attach specific conditions to such authorisation.

5. When the Council envisages concluding an agreement which calls for amendments to this Treaty, the amendments must first be adopted in accordance with the procedure laid down in Article 48 of the Treaty on European Union.

6. The European Parliament, the Council, the Commission or a Member State may obtain the opinion of the Court of Justice as to whether an agreement envisaged is compatible with the provisions of this Treaty. Where the opinion of the Court of Justice is adverse, the agreement may enter into force only in accordance with Article 48 of the Treaty on European Union.

7. Agreements concluded under the conditions set out in this Article shall be binding on the institutions of the Community and on Member States.

Appraisal

General

All Community acts must be founded upon a legal basis laid down in the Treaty (or in another legal act which they are intended to implement). The legal basis defines the Community's competence ratione materiae and specifies how that competence is to be exercised, namely the legislative instrument(s) which may be used and the decision-making procedure.

In view of the consequences of the legal basis, its choice is of basic importance, particularly for Parliament, since it determines what say, if any, Parliament has in the legislative process.

According to the Court of Justice the choice of legal basis is not a subjective one, but "must be based on objective factors which are amenable to judicial review"[4], such as the aim and content of the measure in question[5]. Furthermore, the decisive factor should be the main object of a measure.[6]

According to the case-law of the Court of Justice, a general Treaty article constitutes a sufficient legal basis even though the measure in question also seeks, in a subordinate manner, to attain an aim sought by a specific Treaty article[7].

However, where a measure has several contemporaneous objectives which are indissolubly linked with each other without one being secondary and indirect in respect to the others, the measure must be based on the various relevant Treaty provisions[8] unless this is impossible on account of the mutual incompatibility of the decision-making procedures laid down by the provisions[9].

The Commission's proposal under examination is based on both Article 175(1) of the EC Treaty and on Article 133, which refers to Article 300. The question which arises is whether a dual legal basis is admissible.

Analysis of the proposal

First and foremost, it should be borne in mind that, being a recasting instrument, the proposal in question on the one hand introduces substantive changes to the existing legislation and on the other hand codifies the provisions intended to remain unchanged. It also repeals the acts that it replaces.

In its opinion of 15 December 2008, the Committee on Legal Affairs, endorsing the opinion of the Legal Services, considered that the addition of a reference to Article 133 of the EC Treaty to the already existing reference to Article 175(1) constituted a substantive change which should have been identified by using the grey-shaded type generally used for marking such changes. That clarification enabled the Committee on the Environment, Public Health and Food Safety to consider an amendment questioning the expediency of that additional legal basis.

The explanatory memorandum of the Commission proposal states that "the primary objectives of the Regulation are to provide a high level of protection for the environment and to implement an international environmental agreement. However, the Regulation contains trade measures to achieve these objectives and therefore this proposal is based on Article 175 and Article 133 of the EC Treaty".

In reality, the prevalence of environmental objectives is unquestionable.

Firstly, according to recital 2 of the proposal, a "significant threat to health and environment" persists and "further efficient measures need therefore to be taken in order to protect human health and the environment against adverse effects resulting from [such] emissions and to avoid risking further delay in the recovery of the ozone layer".

Secondly, which is even more instructive, Article 1, in defining the subject matter of the proposal, provides as follows:

"This Regulation lays down rules on the production, importation, exportation, placing on the market, use, recovery, recycling, reclamation and destruction of substances that deplete the ozone layer, on  the reporting of information related to those substances and on the importation, exportation, placing on the market and use of products and equipment containing relying on those substances".

Examination of those texts shows that rules on trade operations such as import and export of ozone-depleting substances do not have an isolated goal exclusively pertaining to the common commercial policy but are intertwined with all the other provisions of the proposal, whose global aim is manifestly the protection of human health and the environment.

It is true that Chapter IV of the proposal deals with rules on trade with third countries which might be regarded as provisions implementing the common commercial policy, for they essentially introduce import restrictions and export bans. However, those provisions are merely functional to a broader legislative context which intends to ensure the timely recovery of the ozone layer and to avoid adverse impacts on human health and ecosystems.

It might be objected that these elements are to be regarded as being indissociably linked and neither can be regarded as secondary or indirect as compared with the other and that, given that an import restriction or an export ban could not be introduced under Article 175 of the EC Treaty, recourse to Article 133 is necessary.

However, a survey of the legislative acts which are now recast, especially Regulation (EC) No 2037/2000 of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer (as substantially amended several times), shows that, in spite of similar provisions introducing import restrictions and export bans, the legal basis has always been Article 175 only. This proves that environmental objectives have always been predominant.

As far as the compatibility of the two legal bases is concerned, the Court of Justice has recently held that "recourse to Article 133 EC jointly with Article 175(1) EC is likewise not liable to undermine the Parliament's rights because, although the first-mentioned article does not formally provide for the participation of that institution in the adoption of a measure of the kind at issue in this case, the second article, on the other hand, expressly refers to the procedure provided for in Article 251 EC. (...) The use of a combination of legal bases does not therefore in this case involve any encroachment upon the Parliament's rights since recourse to Article 175(1) EC enables that institution to adopt the measure under the co-decision procedure"[10].

However, considering that Community acts whose centre of gravity lies in the environmental field may incidentally affect trade, the Court has also admitted that, provided only that their environmental policy aspect is predominant, the approval of such agreements must be based on Article 175(1) EC, not Article 133 EC[11]. 

In particular, with respect to an international agreement, the Court, to draw a line between the common commercial policy (Article 133 EC) and environmental policy (Article 175 EC) as possible legal bases for Community acts, has developed the criterion of direct and immediate effect [12]. This consideration may also be applied to other kinds of Community act. If, then, a Community act with environmental policy aims has no direct and immediate effects on trade, that act is to be based on Article 175 EC; in the contrary case, it must be based on Article 133 EC. The direct and immediate effects on trade need not necessarily consist in promoting or facilitating trade. For a Community act to be capable of falling within the scope of Article 133 EC, it suffices rather that such an act is ‘an instrument intended essentially … to promote, facilitate or govern trade’[13]. 

However, it appears from the scope of the proposal in question, along with its legislative precedents, that the measures aiming at governing trade of ozone-depleting substances cannot be reduced to classic commercial measures, since they are primarily intended to protect human health and the environment.

Conclusion

In the light of the foregoing, it is considered that the most appropriate legal basis is Article 175(1) of the EC Treaty and that there is no need to add any reference to Article 133, for this would exceed the actual objectives of the proposal.

At its meeting of 12 February 2009 the Committee on Legal Affairs accordingly decided, unanimously[14], to recommend that the legal basis of proposal for a Regulation of the European Parliament and of the Council on substances that deplete the ozone layer (recast) refer to Article 175(1) of the EC Treaty.

Yours sincerely,

Giuseppe Gargani

• [1]  Recasting consists in the adoption of a new legal act which incorporates in a single text both the substantive amendments which it makes to an earlier act and the unchanged provisions of that act. The new legal act replaces and repeals the earlier act. It is governed by the Interinstitutional Agreement of 28 November 2001 (OJ C 77, 28.3.2002, p. 1) and by Rule 80a of the Rules of Procedure. The latter reads as follows:
  "1.    When a Commission proposal recasting Community legislation is submitted to Parliament, that proposal shall be referred to the committee responsible for legal affairs and to the committee responsible for the subject matter.
  2.    The committee responsible for legal affairs shall examine the proposal in accordance with the arrangements agreed at interinstitutional level with a view to checking that it entails no substantive changes other than those identified as such in the proposal.
  For the purpose of that examination, amendments to the text of the proposal shall be inadmissible. However, the second subparagraph of Rule 80(3) shall apply as regards the provisions which remain unchanged in the recasting proposal.
  3.    If the committee responsible for legal affairs considers that the proposal does not entail any substantive changes other than those identified as such in the proposal, it shall inform the committee responsible.
  In such a case, over and above the conditions laid down in Rules 150 and 151, amendments shall be admissible within the committee responsible only if they concern those parts of the proposal which contain changes.
  However, amendments to the parts which have remained unchanged may be admitted by way of exception and on a case-by-case basis by the chair of the above committee if he or she considers that this is necessary for pressing reasons relating to the internal logic of the text or because the amendments are inextricably linked to other admissible amendments. Such reasons must be stated in a written justification to the amendments.
  4.    If the committee responsible for legal affairs considers that the proposal entails substantive changes other than those which have been identified as such in the proposal, it shall propose that Parliament reject the proposal and it shall inform the committee responsible that it has done so.
  In such a case the President shall request the Commission to withdraw the proposal. If the Commission does so, the President shall hold the procedure to be superfluous and shall inform the Council accordingly. If the Commission does not withdraw its proposal, Parliament shall refer the matter back to the committee responsible for the subject matter, which shall consider it in accordance with the normal procedure."
• [2]  The following Members were present: Giuseppe Gargani (Chairman), Bert Doorn, Othmar Karas, Klaus-Heiner Lehne, Manuel Medina Ortega, Diana Wallis, Monica Frassoni, Francesco Enrico Speroni,, Jean-Paul Gauzès, Georgios Papastamkos, Costas Botopoulos, Ieke van den Burg, Eva Lichtenberger.
• [3]  Article 174 of the EC Treaty sets the objectives of the Community policy on the environment.
• [4]  Case 45/86, Commission v. Council [1987] ECR 1439, para. 5.
• [5]  Case C-300/89, Commission v. Council [1991] ECR I-287, para. 10.
• [6]  Case C-377/98, Netherlands v. European Parliament and Council [2001] ECR I-7079, para. 27.
• [7]  Case C-377/98 Netherlands v. European Parliament and Council [2001] ECR I-7079, paras 27-28; Case C-491/01 British American Tobacco (Investments) and Imperial Tobacco [2002] ECR I-11453, paras 93-94.
• [8]  Case 165/87 Commission v. Council [1988] ECR 5545, para. 11.
• [9]  See, e.g., Case C-300/89 Commission v. Council [1991] ECR I-2867, paras 17-21 (Titanium dioxide case), Case C-388/01 Commission v. Council [2004] ECR I-4829, para. 58 and Case C-491/01 British American Tobacco [2002] ECR I-11453, paras 103-111.
• [10]  See the judgment of 10 January 2006 in Case C-178/03 Commission v. Parliament and Council [2006] ECR I-107, para 59, and the judgment of the same date in Case C-94/03 Commission v. Council [2006] ECR I-1, para 54.
• [11]  Thus – in the case of an international agreement – in Opinion 2/00 (‘Cartagena Protocol on Biosafety’) [2001] ECR I-9713, especially paras 25 and 40 to 44.
• [12]  Case C‑281/01 Commission v Council (‘Energy Star’) [2002] ECR I‑12049, paras 40 in fine and 41 in fine. The Court had already similarly distinguished, for example, cultural policy (formerly Article 128 of the EC Treaty) and industrial policy (formerly Article 130 of the EC Treaty): Case C-42/97 Parliament v Council [1999] ECR I 869, para. 63.
• [13]  To that effect, see Opinion 2/00, para. 37 in fine; emphasis added. Instruments of commercial policy by no means always have the sole object of promoting or facilitating trade; rather, Article 133 EC also permits classic (protective) measures of commercial policy that may amount to restricting or even prohibiting the import or export of certain products, for instance if anti-dumping duties or a trade embargo is imposed (on the latter, see, for example, Centro-Com, [1997] ECR I‑81).
• [14]  The following were present for the final vote: Alin Lucian Antochi (acting Chair), Rainer Wieland (Vice-Chair), Lidia Joanna Geringer de Oedenberg (Vice-Chair), Francesco Enrico Speroni (Vice-Chair), Monica Frassoni (rapporteur), Sharon Bowles, Brian Crowley, Jean-Paul Gauzès, Klaus-Heiner Lehne, Alain Lipietz, Manuel Medina Ortega, Georgios Papastamkos, Aloyzas Sakalas.

PROCEDURE

Title	Substances that deplete the ozone layer (Recast)
References	COM(2008)0505 – C6-0297/2008 – 2008/0165(COD)
Date submitted to Parliament	1.8.2008
Committee responsible        Date announced in plenary	ENVI 23.9.2008
Committee(s) asked for opinion(s)        Date announced in plenary	JURI 23.9.2008
Not delivering opinions        Date of decision	JURI 25.6.2008
Rapporteur(s)        Date appointed	Johannes Blokland 7.10.2008
Discussed in committee	8.12.2008
Date adopted	22.1.2009
Result of final vote	+: –: 0:	47 0 3
Members present for the final vote	Adamos Adamou, Georgs Andrejevs, Liam Aylward, Maria Berger, Johannes Blokland, John Bowis, Frieda Brepoels, Martin Callanan, Dorette Corbey, Magor Imre Csibi, Chris Davies, Avril Doyle, Edite Estrela, Jill Evans, Anne Ferreira, Elisabetta Gardini, Cristina Gutiérrez-Cortines, Satu Hassi, Jens Holm, Marie Anne Isler Béguin, Caroline Jackson, Christa Klaß, Eija-Riitta Korhola, Peter Liese, Linda McAvan, Riitta Myller, Péter Olajos, Miroslav Ouzký, Vladko Todorov Panayotov, Dimitrios Papadimoulis, Vittorio Prodi, Frédérique Ries, Guido Sacconi, Daciana Octavia Sârbu, Richard Seeber, María Sornosa Martínez, Thomas Ulmer, Anja Weisgerber, Glenis Willmott
Substitute(s) present for the final vote	Iles Braghetto, Philip Bushill-Matthews, Christofer Fjellner, Milan Gaľa, Jutta Haug, Johannes Lebech, Robert Sturdy, Andres Tarand
Substitute(s) under Rule 178(2) present for the final vote	Daniel Cohn-Bendit, Constanze Angela Krehl, Bernhard Rapkay