29.1.2008   

EN

Official Journal of the European Union

L 24/1

(1)

Regulation (EC) No 1207/2001 (1) lays down provisions to support the correct issue or making out of proofs of origin in relation to exports of products from the Community in the context of its preferential trade relations with certain third countries.

(2)

Annexes III and IV of Regulation (EC) No 1207/2001 should be amended in order to ensure correct indication of the origin of materials used in the manufacture in the Community of originating products.

(3)

Regulation (EC) No 1207/2001 should therefore be amended accordingly,

1.

Annex III shall be replaced by the text set out in Annex I to this Regulation;

2.

Annex IV shall be replaced by the text set out in Annex II to this Regulation.

29.1.2008   

EN

Official Journal of the European Union

L 24/4

(1)

Regulation (EC) No 1580/2007 lays down, pursuant to the outcome of the Uruguay Round multilateral trade negotiations, the criteria whereby the Commission fixes the standard values for imports from third countries, in respect of the products and periods stipulated in the Annex thereto.

(2)

In compliance with the above criteria, the standard import values must be fixed at the levels set out in the Annex to this Regulation,

29.1.2008   

EN

Official Journal of the European Union

L 24/6

(1)

Article 12 of Commission Regulation (EC) No 950/2006 of 28 June 2006 laying down detailed rules of application for the 2006/2007, 2007/2008 and 2008/2009 marketing years for the import and refining of sugar products under certain tariff quotas and preferential agreements (2) provides for detailed rules for setting delivery obligations at zero duty for products falling within CN code 1701, expressed in white-sugar equivalent, for imports originating in the countries that are signatories to the ACP Protocol and to the Agreement with India.

(2)

Application of Articles 3 and 7 of the ACP Protocol, Articles 3 and 7 of the Agreement with India and Article 12(3) and Articles 14 and 15 of Regulation (EC) No 950/2006 has resulted in the Commission setting delivery obligations for each exporting country for the 2007/2008 delivery period, on the basis of the information currently available.

(3)

Commission Regulation (EC) No 505/2007 (3) has determined provisionally the delivery obligations for cane sugar to be imported under the ACP Protocol and the Agreement with India for the 2007/2008 delivery period.

(4)

It is therefore necessary to set the delivery obligations for the period 2007/2008 in accordance with point (b) of Article 12(2) of Regulation (EC) No 950/2006.

(5)

The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Sugar,

29.1.2008   

EN

Official Journal of the European Union

L 24/8

(1)

Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (3) has been substantially amended several times (4). In the interests of clarity and rationality the said Directive should be codified.

(2)

The objectives and principles of the Community’s environment policy, as set out in Article 174 of the Treaty, consist in particular of preventing, reducing and as far as possible eliminating pollution by giving priority to intervention at source and ensuring prudent management of natural resources, in compliance with the ‘polluter pays’ principle and the principle of pollution prevention.

(3)

The Fifth Environmental Action Programme, the broad outline of which was approved by the Council and the Representatives of the Governments of the Member States, meeting within the Council, in the Resolution of 1 February 1993 on a Community programme of policy and action in relation to the environment and sustainable development (5), accorded priority to integrated pollution control as an important part of the move towards a more sustainable balance between human activity and socioeconomic development, on the one hand, and the resources and regenerative capacity of nature, on the other.

(4)

The implementation of an integrated approach to reduce pollution requires action at Community level in order to modify and supplement existing Community legislation concerning the prevention and control of pollution from industrial plants.

(5)

Council Directive 84/360/EEC of 28 June 1984 on the combating of air pollution from industrial plants (6) introduced a general framework requiring authorisation prior to any operation or substantial modification of industrial installations which may cause air pollution.

(6)

Directive 2006/11/EC of the European Parliament and of the Council of 15 February 2006 on pollution caused by certain dangerous substances discharged into the aquatic environment of the Community (7) provides for an authorisation requirement for the discharge of those substances.

(7)

Although Community legislation exists on the combating of air pollution and the prevention or minimisation of the discharge of dangerous substances into water, there is no comparable Community legislation aimed at preventing or minimising emissions into soil.

(8)

Different approaches to controlling emissions into the air, water or soil separately may encourage the shifting of pollution between the various environmental media rather than protecting the environment as a whole.

(9)

The objective of an integrated approach to pollution control is to prevent emissions into air, water or soil wherever this is practicable, taking into account waste management, and, where it is not, to minimise them in order to achieve a high level of protection for the environment as a whole.

(10)

This Directive should establish a general framework for integrated pollution prevention and control. It should lay down the measures necessary to implement integrated pollution prevention and control in order to achieve a high level of protection for the environment as a whole. Application of the principle of sustainable development should be promoted by an integrated approach to pollution control.

(11)

The provisions of this Directive should apply without prejudice to the provisions of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (8). When information or conclusions obtained further to the application of that Directive have to be taken into consideration for the granting of authorisation, this Directive should not affect the implementation of Directive 85/337/EEC.

(12)

Member States should take the necessary steps in order to ensure that the operator of the industrial activities referred to in this Directive is complying with the general principles of certain basic obligations. For that purpose it would suffice for the competent authorities to take those general principles into account when laying down the authorisation conditions.

(13)

Some of the provisions adopted pursuant to this Directive must be applied to existing installations after 30 October 2007 and others had to be applied as from 30 October 1999.

(14)

In order to tackle pollution problems more effectively and efficiently, environmental aspects should be taken into consideration by the operator. Those aspects should be communicated to the competent authority or authorities so that they can satisfy themselves, before granting a permit, that all appropriate preventive or pollution-control measures have been laid down. Very different application procedures may give rise to different levels of environmental protection and public awareness. Therefore, applications for permits under this Directive should include minimum data.

(15)

Full coordination of the authorisation procedure and conditions between competent authorities should make it possible to achieve the highest practicable level of protection for the environment as a whole.

(16)

The competent authority or authorities should grant or amend a permit only when integrated environmental protection measures for air, water and land have been laid down.

(17)

The permit should include all necessary measures to fulfil the authorisation conditions in order thus to achieve a high level of protection for the environment as a whole. Without prejudice to the authorisation procedure, those measures may also be the subject of general binding requirements.

(18)

Emission limit values, parameters or equivalent technical measures should be based on the best available techniques, without prescribing the use of one specific technique or technology and taking into consideration the technical characteristics of the installation concerned, its geographical location and local environmental conditions. In all cases the authorisation conditions should lay down provisions on minimising long-distance or transfrontier pollution and ensure a high level of protection for the environment as a whole.

(19)

It is for the Member States to determine how the technical characteristics of the installation concerned, its geographical location and local environmental conditions can, where appropriate, be taken into consideration.

(20)

When an environmental quality standard requires more stringent conditions than those that can be achieved by using the best available techniques, supplementary conditions should in particular be required by the permit, without prejudice to other measures that may be taken to comply with the environmental quality standards.

(21)

Because best available techniques will change with time, particularly in the light of technical advances, the competent authorities should monitor or be informed of such progress.

(22)

Changes to an installation may give rise to pollution. The competent authority or authorities should therefore be notified of any change which might affect the environment. Substantial changes to plant must be subject to the granting of prior authorisation in accordance with this Directive.

(23)

The authorisation conditions should be periodically reviewed and if necessary updated. Under certain conditions, they should in any event be re-examined.

(24)

Effective public participation in the taking of decisions should enable the public to express, and the decision-maker to take account of, opinions and concerns which may be relevant to those decisions, thereby increasing the accountability and transparency of the decision-making process and contributing to public awareness of environmental issues and support for the decisions taken. In particular, the public should have access to information on the operation of installations and their potential effect on the environment, and, before any decision is taken, to information relating to applications for permits for new installations or substantial changes and to the permits themselves, their updating and the relevant monitoring data.

(25)

Participation, including participation by associations, organisations and groups, in particular non-governmental organisations promoting environmental protection, should accordingly be fostered, including by promoting environmental education of the public.

(26)

On 25 June 1998 the Community signed the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Århus Convention). Among the objectives of the Århus Convention is the desire to guarantee rights of public participation in decision-making in environmental matters in order to contribute to the protection of the right to live in an environment which is adequate for personal health and well-being.

(27)

The development and exchange of information at Community level about best available techniques should help to redress the technological imbalances in the Community, should promote the worldwide dissemination of limit values and techniques used in the Community and should help the Member States in the efficient implementation of this Directive.

(28)

Reports on the implementation and effectiveness of this Directive should be drawn up regularly.

(29)

This Directive is concerned with installations whose potential for pollution, and therefore transfrontier pollution, is significant. Transboundary consultation should be organised where applications relate to the licensing of new installations or substantial changes to installations which are likely to have significant negative environmental effects. The applications relating to such proposals or substantial changes should be available to the public of the Member State likely to be affected.

(30)

The need for action may be identified at Community level to lay down emission limit values for certain categories of installation and pollutant covered by this Directive. The European Parliament and the Council should set such emission limit values in accordance with the provisions of the Treaty.

(31)

The provisions of this Directive should apply without prejudice to Community provisions on health and safety at the workplace.

(32)

This Directive should be without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law of the Directives as set out in Annex VI, Part B,

1.

‘substance’ means any chemical element and its compounds, with the exception of radioactive substances within the meaning of Council Directive 96/29/Euratom of 13 May 1996 laying down basic safety standards for the protection of the health of workers and the general public against the dangers arising from ionizing radiation (9) and genetically modified organisms within the meaning of Council Directive 90/219/EEC of 23 April 1990 on the contained use of genetically modified micro-organisms (10) and Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms (11);

2.

‘pollution’ means the direct or indirect introduction, as a result of human activity, of substances, vibrations, heat or noise into the air, water or land which may be harmful to human health or the quality of the environment, result in damage to material property, or impair or interfere with amenities and other legitimate uses of the environment;

3.

‘installation’ means a stationary technical unit where one or more activities listed in Annex I are carried out, and any other directly associated activities which have a technical connection with the activities carried out on that site and which could have an effect on emissions and pollution;

4.

‘existing installation’ means an installation which on 30 October 1999, in accordance with legislation existing before that date, was in operation or was authorised or, in the view of the competent authority, was the subject of a full request for authorisation, provided that that installation was put into operation no later than 30 October 2000;

5.

‘emission’ means the direct or indirect release of substances, vibrations, heat or noise from individual or diffuse sources in the installation into the air, water or land;

6.

‘emission limit values’ means the mass, expressed in terms of certain specific parameters, concentration and/or level of an emission, which may not be exceeded during one or more periods of time; emission limit values may also be laid down for certain groups, families or categories of substances, in particular for those listed in Annex III. The emission limit values for substances normally apply at the point where the emissions leave the installation, any dilution being disregarded when determining them; with regard to indirect releases into water, the effect of a water treatment plant may be taken into account when determining the emission limit values of the installation involved, provided that an equivalent level is guaranteed for the protection of the environment as a whole and provided this does not lead to higher levels of pollution in the environment, without prejudice to Directive 2006/11/ΕC or the Directives implementing it;

7.

‘environmental quality standard’ means the set of requirements which must be fulfilled at a given time by a given environment or particular part thereof, as set out in Community legislation;

8.

‘competent authority’ means the authority or authorities or bodies responsible under the legal provisions of the Member States for carrying out the obligations arising from this Directive;

9.

‘permit’ means that part or the whole of a written decision (or several such decisions) granting authorisation to operate all or part of an installation, subject to certain conditions which guarantee that the installation complies with the requirements of this Directive. A permit may cover one or more installations or parts of installations on the same site operated by the same operator;

10.

‘change in operation’ means a change in the nature or functioning, or an extension, of the installation which may have consequences for the environment;

11.

‘substantial change’ means a change in operation which, in the opinion of the competent authority, may have significant negative effects on human beings or the environment; for the purposes of this definition, any change to or extension of an operation shall be deemed to be substantial if the change or extension in itself meets the thresholds, if any, set out in Annex I;

12.

‘best available techniques’ means the most effective and advanced stage in the development of activities and their methods of operation which indicate the practical suitability of particular techniques for providing in principle the basis for emission limit values designed to prevent and, where that is not practicable, generally to reduce emissions and the impact on the environment as a whole:

In determining the best available techniques, special consideration should be given to the items listed in Annex IV;

13.

‘operator’ means any natural or legal person who operates or controls the installation or, where this is provided for in national legislation, to whom decisive economic power over the technical functioning of the installation has been delegated;

14.

‘the public’ means one or more natural or legal persons and, in accordance with national legislation or practice, their associations, organisations or groups;

15.

‘the public concerned’ means the public affected or likely to be affected by, or having an interest in, the taking of a decision on the issuing or the updating of a permit or of permit conditions; for the purposes of this definition, non-governmental organisations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest.

(a)

all the appropriate preventive measures are taken against pollution, in particular through application of the best available techniques;

(b)

no significant pollution is caused;

(c)

waste production is avoided in accordance with Directive 2006/12/EC of the European Parliament and of the Council of 5 April 2006 on waste (12); where waste is produced, it is recovered or, where that is technically and economically impossible, it is disposed of while avoiding or reducing any impact on the environment;

(d)

energy is used efficiently;

(e)

the necessary measures are taken to prevent accidents and limit their consequences;

(f)

the necessary measures are taken upon definitive cessation of activities to avoid any pollution risk and return the site of operation to a satisfactory state.

(a)

the installation and its activities;

(b)

the raw and auxiliary materials, other substances and the energy used in or generated by the installation;

(c)

the sources of emissions from the installation;

(d)

the conditions of the site of the installation;

(e)

the nature and quantities of foreseeable emissions from the installation into each medium as well as identification of significant effects of the emissions on the environment;

(f)

the proposed technology and other techniques for preventing or, where this not possible, reducing emissions from the installation;

(g)

where necessary, measures for the prevention and recovery of waste generated by the installation;

(h)

further measures planned to comply with the general principles of the basic obligations of the operator as provided for in Article 3;

(i)

measures planned to monitor emissions into the environment;

(j)

the main alternatives, if any, studied by the applicant in outline.

(a)

the pollution caused by the installation is of such significance that the existing emission limit values of the permit need to be revised or new such values need to be included in the permit;

(b)

substantial changes in the best available techniques make it possible to reduce emissions significantly without imposing excessive costs;

(c)

the operational safety of the process or activity requires other techniques to be used;

(d)

new provisions of Community or national legislation so dictate.

(a)

the conditions of the permit are complied with by the operator when operating the installation;

(b)

the operator regularly informs the competent authority of the results of the monitoring of releases and without delay of any incident or accident significantly affecting the environment;

(c)

operators of installations afford the representatives of the competent authority all necessary assistance to enable them to carry out any inspections within the installation, to take samples and to gather any information necessary for the performance of their duties for the purposes of this Directive.

(a)

issuing a permit for new installations;

(b)

issuing a permit for any substantial change;

(c)

updating of a permit or permit conditions for an installation in accordance with Article 13(2)(a).

(a)

the content of the decision, including a copy of the permit and of any conditions and any subsequent updates; and

(b)

having examined the concerns and opinions expressed by the public concerned, the reasons and considerations on which the decision is based, including information on the public participation process.

(a)

they have a sufficient interest; or

(b)

they maintain the impairment of a right, where administrative procedural law of a Member State requires this as a precondition.

(a)

the categories of installations listed in Annex I except for the landfills covered by points 5,1 and 5,4 of that Annex,

and

(b)

the polluting substances referred to in Annex III.

29.1.2008   

EN

Official Journal of the European Union

L 24/30

(1)

Council Directive 74/347/EEC of 25 June 1974 on the approximation of the laws of the Member States relating to the field of vision and windscreen wipers for wheeled agricultural or forestry tractors (3) has been substantially amended several times (4). In the interests of clarity and rationality the said Directive should be codified.

(2)

Directive 74/347/EEC is one of the separate Directives of the EC type-approval system provided for in Council Directive 74/150/EEC as replaced by Directive 2003/37/EC of the European Parliament and of the Council of 26 May 2003 on type-approval of agricultural or forestry tractors, their trailers and interchangeable towed machinery, together with their systems, components and separate technical units (5), and lays down technical prescriptions concerning the design and construction of wheeled agricultural or forestry tractors as regards the field of vision and windscreen wipers. These technical prescriptions concern the approximation of the laws of the Member States to enable the EC type-approval procedure, provided for in Directive 2003/37/EC, to be applied in respect of each type of tractor. Consequently, the provisions laid down in Directive 2003/37/EC relating to agricultural or forestry tractors, their trailers and interchangeable towed machinery, together with their systems, components and separate technical units, apply to this Directive.

(3)

This Directive should be without prejudice to the obligations of the Member States relating to the time-limits for transposition into national law and application of the Directives as set out in Annex II, Part B,

29.1.2008   

EN

Official Journal of the European Union

L 24/39

(1)

References for a preliminary ruling which may be submitted to the Court of Justice in the areas covered by Title VI of the Treaty on European Union or Title IV of Part Three of the Treaty establishing the European Community, which seek to maintain and develop an area of freedom, security and justice, require, in certain cases, a rapid response from the Court by reason of the urgency with which the case has to be dealt with before the national court or tribunal.

(2)

The normal preliminary ruling procedure, as set out in Article 23 of the Statute of the Court of Justice and in the Rules of Procedure, does not allow the Court to rule on the questions submitted to it with the rapidity required in the types of case referred to above. The accelerated procedure provided for in Article 104a of the Rules of Procedure for references for a preliminary ruling comprises the same stages as the normal procedure for preliminary rulings and can be applied only in exceptional cases, since acceleration is achieved primarily by giving priority to the reference for a preliminary ruling in question over all other pending cases at all stages of the proceedings.

(3)

It is possible to deal rapidly with a significant number of references for a preliminary ruling only by introducing an urgent preliminary ruling procedure which limits and simplifies the stages of the preliminary ruling procedure.

1.

Article 9 shall be amended as follows:

2.

The following shall be added after Article 104a:

‘Article 104b

1.   A reference for a preliminary ruling which raises one or more questions in the areas covered by Title VI of the Union Treaty or Title IV of Part Three of the EC Treaty may, at the request of the national court or tribunal or, exceptionally, of the Court’s own motion, be dealt with under an urgent procedure which derogates from the provisions of these Rules.

The national court or tribunal shall set out, in its request, the matters of fact and law which establish the urgency and justify the application of that exceptional procedure and shall, insofar as possible, indicate the answer it proposes to the questions referred.

If the national court or tribunal has not submitted a request for the urgent procedure to be applied, the President of the Court may, if the application of that procedure appears, prima facie, to be required, ask the Chamber referred to below to consider whether it is necessary to deal with the reference under that procedure.

The decision to deal with a reference for a preliminary ruling under the urgent procedure shall be taken by the designated Chamber, acting on a report of the Judge-Rapporteur and after hearing the Advocate General. The composition of that Chamber shall be determined in accordance with Article 11c on the day on which the case is assigned to the Judge-Rapporteur if the application of the urgent procedure is requested by the national court or tribunal, or, if the application of that procedure is considered at the request of the President of the Court, on the day on which that request is made.

2.   A reference for a preliminary ruling of the kind referred to in the preceding paragraph shall, where the national court or tribunal has requested the application of the urgent procedure or where the President has requested the designated Chamber to consider whether it is necessary to deal with the reference under that procedure, be notified forthwith by the Registrar to the parties to the action before the national court or tribunal, to the Member State from which the reference is made and to the institutions referred to in the first paragraph of Article 23 of the Statute, in accordance with that provision.

The decision as to whether or not to deal with the reference for a preliminary ruling under the urgent procedure shall be notified forthwith to the national court or tribunal and to the parties, Member State and institutions referred to in the preceding subparagraph. The decision to deal with the reference under the urgent procedure shall prescribe the period within which those parties or entities may lodge statements of case or written observations. The decision may specify the matters of law to which such statements of case or written observations must relate and may specify the maximum length of those documents.

As soon as the notification referred to in the first subparagraph above has been made, the reference for a preliminary ruling shall also be communicated to the interested persons referred to in Article 23 of the Statute, other than the persons notified, and the decision whether or not to deal with the reference for a preliminary ruling under the urgent procedure shall be communicated to those interested persons as soon as the notification referred to in the second subparagraph has been made.

The parties and other interested persons referred to in Article 23 of the Statute shall be informed as soon as may be possible of the foreseeable date of the hearing.

Where the reference is not to be dealt with under the urgent procedure, the proceedings shall continue in accordance with the provisions of Article 23 of the Statute and the applicable provisions of these Rules.

3.   A reference for a preliminary ruling which is to be dealt with under an urgent procedure, together with the statements of case or written observations which have been lodged, shall be served on the persons referred to in Article 23 of the Statute other than the parties and the entities referred to in the first subparagraph of the preceding paragraph of this Article. The reference for a preliminary ruling shall be accompanied by a translation, where appropriate in summary form, in accordance with Article 104(1).

The statements of case or written observations which have been lodged shall also be served on the parties and the other persons referred to in the first subparagraph of Article 104b(2).

The date of the hearing shall be notified to the parties and those other persons at the same time as the documents referred to in the preceding paragraphs are served.

4.   The Chamber may, in cases of extreme urgency, decide to omit the written part of the procedure referred to in the second subparagraph of paragraph 2 of this Article.

5.   The designated Chamber shall rule after hearing the Advocate General.

It may decide to sit in a formation of three Judges. In that event, it shall be composed of the President of the designated Chamber, the Judge-Rapporteur and the first Judge or, as the case may be, the first two Judges designated from the list referred to in Article 11c(2) on the date on which the composition of the designated Chamber is determined in accordance with the fourth subparagraph of paragraph 1 of this Article.

It may also decide to refer the case back to the Court in order for it to be assigned to a formation composed of a greater number of Judges. The urgent procedure shall continue before the new formation, where necessary after the reopening of the oral procedure.

6.   The procedural documents referred to in this Article shall be deemed to have been lodged on the transmission to the Registry, by telefax or other technical means of communication available to the Court, of a copy of the signed original and the documents relied on in support of it, together with the schedule referred to in Article 37(4). The original of the document and the annexes referred to above shall be sent to the Registry.

Where this Article requires that a document be notified to or served on a person, such notification or service may be effected by the transmission of a copy of the document by telefax or other technical means of communication available to the Court and the addressee.’

29.1.2008   

EN

Official Journal of the European Union

L 24/42

29.1.2008   

EN

Official Journal of the European Union

L 24/44

29.1.2008   

EN

Official Journal of the European Union

L 24/45

(1)

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

(2)

In this letter the Austrian Government points out that the Republic of Austria intends to maintain its national provisions which are more stringent than the Regulation, in accordance with Article 9(3)(a) of Regulation (EC) No 842/2006 until 31 December 2012.

(3)

Article 95(4) of the EC Treaty provides that ‘If, after the adoption by the Council or by the Commission of a harmonisation measure, a Member State deems it necessary to maintain national provisions on grounds of major needs referred to in Article 30, or relating to the protection of the environment or the working environment, it shall notify the Commission of these provisions as well as the grounds for maintaining them.’

(4)

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

(5)

According to Article 95(6), the Commission shall, within six months of the notification, approve or reject the national provisions involved after having verified whether or not they are a means of arbitrary discrimination or a disguised restriction on trade between Member States and whether or not they shall constitute an obstacle to the functioning of the internal market.

(6)

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

(7)

It also contains a limited number of use bans and placing on the market prohibitions when alternatives were considered available and cost effective at Community level and where improvement of containment and recovery were regarded as not feasible.

(8)

The Regulation has a double legal basis, Article 175(1) of the EC Treaty with respect to all provisions and Article 95 of the EC Treaty for Articles 7, 8 and 9, due to their implications in terms of free circulation of goods within the EC single market.

(9)

Article 9 of the Regulation governs the placing on the market and, more precisely, prohibits the marketing of a number of products and equipment containing, or whose functioning relies upon, F-gases covered by the Regulation. In its paragraph 3(a) it stipulates that Member States that have, by 31 December 2005, adopted national measures which are stricter than those laid down in the Article and which fall under the scope of the Regulation may maintain those national measures until 31 December 2012. In accordance with its paragraph 3(b), these measures and their justification shall be notified to the Commission and they shall be compatible with the Treaty.

(10)

The Regulation shall apply with effect from 4 July 2007, with the exception of Article 9 and Annex II, which shall apply from 4 July 2006.

(11)

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

(12)

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

(13)

The Ordinance bans the placing on the market and use of the abovementioned greenhouse gases and their use in certain equipment, units and products, unless they are used for research, development and analytical purposes. The detailed provisions on bans and the conditions of permissibility are laid down in Articles 4 to 17 of the Ordinance.

(14)

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

(15)

Furthermore, the amendment in 2007 introduced relaxations of the restrictions relating to the refrigeration and air-conditioning sector bringing them into line with provisions under Regulation (EC) No 842/2006. Mobile refrigeration and air-conditioning are no longer covered by the amended Ordinance. As regards stationary applications, the bans only apply to small plug in units with a refrigerant charge of 150 g or less and to stand alone equipment with a refrigerant charge of 20 kg or over. For other applications technical parameters are defined ensuring that no more refrigerants are used than necessary in accordance with the state of art. Changes have also been made with respect to the treatment of aerosols containing HFCs and the use of SF6 to bring them in line with EU legislation.

(16)

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

(17)

By letter of 12 October 2007, the Commission informed the other Member States of the notification providing them a period of 30 days to submit any comments. The Commission also published a notice regarding the notification in the Official Journal of the European Union  (2) in order to inform other interested parties of Austria’s national provisions, as well as the grounds invoked to that effect.

(18)

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

(19)

Article 95(4) concerns cases where, after the adoption of a harmonisation measure, a Member State deems it necessary to maintain national provisions on grounds of major needs referred to in Article 30, or relating to the protection of the environment or the working environment.

(20)

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

(21)

The analysis of the amending act concluded that the amendments introduced in 2007 aimed either at deleting provisions (points 10, 12 of the amending Ordinance), reducing their scope to more specific products or applications without adding new requirements (points 1, 3 and 10 of the amending Ordinance), or at introducing additional possibilities to derogate from restriction imposed by the 2002 Ordinance (points 6, 7 of the amending Ordinance). Furthermore, references to Regulation (EC) No 842/2006 and explicit requirements taking account of the harmonisation measures were introduced (points 1, 8, 9 of the amending Ordinance).

(22)

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

(23)

The Ordinance continues to consists, however, of more stringent provisions than Regulation (EC) No 842/2006 since it contains bans on the import, sale and use of new products containing F-gases after 1 January 2006 as well as a ban on the import, sale and use of F-gases, new and recovered, after 1 January 2006, while the Regulation contains a less restrictive ban on the placing on the market since it only applies to products as listed in its Annex II. Furthermore, the Regulation imposes restrictions on the use only on SF6, while the Austrian measure controls also the use of HFCs and PFCs. By going further in terms of placing on the market and control of use, the Ordinance is more stringent than the legislation now in force at Community level.

(24)

The Republic of Austria argues that such legislation is necessary in order for it to meet its obligations under the Kyoto Protocol, namely the reduction of 13 % of its total level of greenhouse gas emissions compared to the 1990 level by 2012, which arguably requires a concerted effort in tackling every source of greenhouse gas emissions.

(25)

The compatibility is examined on the basis of Article 95(4) and 95(6) of the Treaty, taking Regulation 842/2006 into account. Article 95(4) requires that the notification be accompanied by a description of the grounds relating to one or more of the major needs referred to in Article 30 or to the protection of the environment or the working environment.

(26)

In the light of the foregoing, the Commission considers that the application submitted by the Republic of Austria with a view to obtaining authorisation to maintain its national provisions on certain industrial greenhouse gases is admissible under Article 95(4) of the EC Treaty.

(27)

In accordance with Article 95(4) and (6), first subparagraph, of the EC Treaty, the Commission must ascertain that all the conditions enabling a Member State to maintain its national provisions derogating from a Community harmonisation measure provided for in that Article are fulfilled. In particular, the national provisions have to be justified by the major needs referred to in Article 30 of the Treaty, or relating to the protection of the environment or the working environment, must not be a means of arbitrary discrimination or a disguised restriction on trade between Member States and must not constitute an obstacle to the functioning of the internal market which would not be proportionate or necessary.

(28)

The Commission, when examining whether the national measures notified under Article 95(4) are justified, has to take as a basis ‘the grounds’ put forward by the notifying Member State. This means that, according to the provisions of the EC Treaty, the responsibility of proving that the national measures are justified lies with the requesting Member State which seeks to maintain them.

(29)

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

(30)

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

(31)

The Austrian Government takes the view that the purpose of the Ordinance is to protect the environment and that it is necessary and proportionate in terms of preventing and reducing emissions of fluorinated gases. Therefore, in its view, it is compatible with the Treaty.

(32)

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

(33)

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

(34)

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

(35)

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

(36)

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

(37)

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

(38)

Under the Kyoto Protocol, the EC committed to reducing its collective emissions of greenhouse gases from Member States by at least 8 % below the level in 1990 in the 2008-2012 period. During the subsequent discussions within the EC, the Republic of Austria committed to reduce its overall level of greenhouse gases emissions by 13 % during this period (3).

(39)

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

(40)

This strategy covers every source of greenhouse gas emissions covered by the Kyoto Protocol. Measures on F-gases are therefore part of its overall effort to fulfil its obligations. Emissions of these F-gases are estimated to double by 2010 in the absence of further regulation with increasing use of refrigeration and also as a result of the ongoing phase out of HCFCs from refrigeration under Regulation (EC) No 2037/2000 of the European Parliament and of the Council of 29 June 2000 on substances that deplete the ozone layer (4).

(41)

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

(42)

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

(43)

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

(44)

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

(45)

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

(46)

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

(47)

It should be recalled that an application under Article 95(4) of the EC Treaty must be assessed in the light of the conditions laid down in both that paragraph and paragraph 6 of that Article. If any one of those conditions is not met, the application must be rejected without there being a need to examine the others.

(48)

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

(49)

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

(50)

The objective behind the Ordinance is the protection of the environment; there is no indication that the Ordinance, in its intention or implementation, would result in any arbitrary discrimination or disguised barriers to trade.

(51)

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

(52)

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

(53)

Moreover, the Commission finds that the national provisions adopted in 2002, as amended in 2007:

The Commission therefore considers that they can be maintained.

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

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(1)

On 29 June 1998, the Council adopted Common Position 98/409/CFSP concerning Sierra Leone (1) in order to implement the measures imposed by United Nations Security Council Resolution (UNSCR) 1171(1998).

(2)

On 21 December 2007, the United Nations Security Council adopted Resolution 1793(2007) providing for an exemption to the measures imposed by paragraph 5 of UNSCR 1171(1998). Common Position 98/409/CFSP should therefore be amended accordingly,

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