VERORDENING (EU) 2024/590 VAN HET EUROPEES PARLEMENT EN DE RAAD van 7 februari 2024 betreffende stoffen die de ozonlaag afbreken, en tot intrekking van Verordening (EG) nr. 1005/2009 (Voor de EER relevante tekst)

(1)

The European Green Deal, as set out in the Commission communication of 11 December 2019, launched a new growth strategy for the Union that aims to transform the Union into a fair and prosperous society, with a modern, resource-efficient and competitive economy. It reaffirms the Commission’s ambition to make Europe the first climate-neutral and zero pollution continent by 2050 and aims to protect the health and well-being of citizens from environment-related risks and impacts, while ensuring an inclusive, fair and just transition, leaving no one behind. Furthermore, the Union is committed to ensuring the full implementation of Regulation (EU) 2021/1119 of the European Parliament and of the Council (3) and of the 8th Environment Action Programme, established by Decision (EU) 2022/591 of the European Parliament and of the Council (4), and is committed to the United Nations 2030 Agenda for Sustainable Development and its Sustainable Development Goals.

(2)

The ozone layer protects humans and other living beings from harmful ultra-violet (UV) radiation from the sun. It is scientifically well established that continuous emissions of ozone-depleting substances cause significant damage to the ozone layer, leading to significant adverse effects on human health and ecosystems, the biosphere as well as to large economic implications if left unaddressed.

(3)

Pursuant to Council Decision 88/540/EEC (5), the Union became a Party to the Vienna Convention for the Protection of the Ozone Layer (6) and to the Montreal Protocol on Substances that Deplete the Ozone Layer (7) (the ‘Protocol’). The Protocol and subsequent decisions of its Parties constitute a set of globally binding control measures to address the depletion of the ozone layer.

(4)

Regulation (EC) No 1005/2009 of the European Parliament and of the Council (8) ensures, inter alia, that the Union complies with the Protocol. In its evaluation of that Regulation the Commission concluded that the control measures established under that Regulation remain, in general, fit-for-purpose, are efficient and have significantly contributed to stratospheric ozone recovery and to reducing climate warming.

(5)

There is clear evidence of a decrease in the atmospheric burden of ozone-depleting substances and of stratospheric ozone recovery. However, recent assessments show that this recovery of the ozone layer is still fragile, and the return to the concentration levels existing before 1980 is not projected to take place before the middle of the 21st century. Therefore, increased UV radiation persists as a significant threat to health and the environment. Avoiding the risk of further delays in the recovery of the ozone layer remains dependent on ensuring that existing obligations are fully implemented, that more action is taken on remaining emission sources to reduce emissions, and that the necessary measures are in place to address any upcoming challenges swiftly and effectively.

(6)

Most ozone-depleting substances also have high global warming potential (GWP) and are contributory factors towards increasing the temperature of the planet. Considering the significant findings of the 2021 Special Report of the Intergovernmental Panel on Climate Change, this Regulation should ensure that all feasible efforts are taken to reduce emissions of ozone-depleting substances. Reducing emissions contributes to reaching the objective of the Paris Agreement adopted under the United Nations Framework Convention on Climate Change (UNFCCC) (the ‘Paris Agreement’) (9) to keep a global temperature rise in this century well below 2 °C above pre-industrial levels and to pursue efforts to limit the temperature increase even further to 1,5 °C.

(7)

In order to increase awareness of the GWP of ozone-depleting substances, in addition to the ozone-depleting potential (ODP) of the substances, their respective GWP should also be listed in this Regulation.

(8)

Regulation (EC) No 1005/2009 and previous Union legal acts established more stringent control measures than required under the Protocol, providing for more restrictive rules on import and export.

(9)

Under Regulation (EC) No 1005/2009, the production and placing on the market of ozone-depleting substances has been phased out for almost all uses. The placing on the market of products and equipment containing ozone-depleting substances or whose functioning relies upon those substances has also been prohibited, except for certain cases where the use of such substances is still allowed. Even after the phase-out of ozone-depleting substances, under certain conditions, it is necessary to continue to allow for exemptions for certain uses where alternatives are not yet available.

(10)

The Union’s production of ozone-depleting substances in 2021 was higher than it had been during the previous 10 years, and had increased by 27 % in 2021 compared to 2020. According to the report of the European Environment Agency entitled ‘Ozone-Depleting Substances 2022’, 90 % of the increase is due to feedstock use. Feedstock use increased by 11 % in 2021 compared to 2020. While a derogation for ozone-depleting substances used as feedstock in the chemical production of certain goods, including pharmaceuticals, is justified in the light of low emission rates and the lack of feasible alternative options, it is important to regularly assess the availability of alternatives as well as the actual emission levels of existing feedstock uses. The Commission should, if appropriate, adopt delegated acts to establish a list of chemical production processes for which the use of ozone-depleting substances listed in Annex I as feedstock is prohibited. The delegated acts should take into account the availability of technically and economically feasible alternatives, on the basis of the technical assessments carried out under the Protocol, in particular quadrennial reports and other technical reports prepared by the assessment panels under the Protocol, that include assessments of available alternatives to existing feedstock uses and of emission levels of existing feedstock uses, and that provide a sufficient basis for taking a decision whether to prohibit specific feedstock uses. Where no such assessments carried out under the Protocol are available, the Commission should make its own assessment on the basis of technical data on the existing feedstock uses, their related emissions and their impact on the ozone layer and on the climate and on the availability of technically and economically feasible alternatives, and should adopt, where appropriate and on the basis of that assessment, a delegated act to establish the list of chemical production processes for which the use of ozone-depleting substances listed in Annex I as feedstock is prohibited. The list can be updated, in light of the findings of the quadrennial reports prepared by the assessment panels under the Protocol or of the Commission’s own assessment.

(11)

Taking into account the small quantities of ozone-depleting substances actually used for essential laboratory and analytical uses, a proportionate control measure needs to be established in that respect. The registration obligation under Regulation (EC) No 1005/2009 should be replaced with the requirement to keep records in order to prevent unlawful use and monitor the development of alternatives.

(12)

The placing on the market and use of halons should only be allowed for critical uses, which should be determined taking into account the availability of alternative substances or technologies and developments in international standards.

(13)

The Halons Technical Options Committee, established under the Protocol, indicated that non-virgin halon stocks for critical uses might not be sufficient to meet the needs at global level from 2030 onwards. To avoid having to produce new halons to meet future needs, it is important to take measures to increase the availability, and provide for adequate monitoring, of stocks of halon recovered from equipment.

(14)

Under Regulation (EC) No 1005/2009, the exemption for all critical uses of methyl bromide, including for quarantine and pre-shipment purposes, ceased on 18 March 2011. The Protocol contains provisions that govern emergency use. Those provisions have not so far been applied within the Union. It is therefore unlikely that any actor within the Union would need to make use of those provisions. However, as future emergency situations cannot be ruled out, and in order to align this Regulation with the Protocol, the possibility to grant a derogation in emergency situations, namely in the event of unexpected outbreaks of particular pests or diseases, should remain available where such emergency use is permitted under Regulations (EC) No 1107/2009 (10) and (EU) No 528/2012 (11) of the European Parliament and of the Council. In such cases, the measures adopted to minimise emissions, such as the use of virtually impermeable films for soil treatment, should be specified.

(15)

There is growing concern over the impact on global emissions of some of the ozone-depleting substances not controlled under the Protocol, listed in Annex II, including the increase in atmospheric concentration of dichloromethane that could delay the recovery of the stratospheric ozone layer. In 2021, the Union production, in metric tonnes, of those ozone-depleting substances was approximately four times higher than the production of ozone-depleting substances controlled under the Protocol. However, when expressed in ODP tonnes, the production was approximately four times lower compared to the ozone-depleting substances listed in Annex I. Further containment measures are necessary and enhanced monitoring is important, including through provisions on recovery or destruction, leak repair and the prevention of unintentional release for ozone-depleting substances not controlled under the Protocol.

(16)

Restrictions set out in this Regulation regarding products and equipment containing ozone-depleting substances should also cover products and equipment whose functioning relies upon those substances, in order to prevent circumvention of those restrictions.

(17)

It is important to ensure that ozone-depleting substances are allowed to be placed on the market for the purposes of reclamation in the Union. Ozone-depleting substances, and products and equipment containing those substances or whose functioning relies upon those substances should also be allowed to be placed on the market for the purposes of destruction by technology that has been approved by the Parties to the Protocol or by technology that has not been approved by the Parties to the Protocol but complies with Union and national law.

(18)

Non-refillable containers for ozone-depleting substances should be prohibited since, when those containers are emptied, an amount of refrigerant inevitably remains, which is then released into the atmosphere. This Regulation should prohibit their export, import, placing on the market, subsequent supply or making available on the market, and use, except for the purpose of essential laboratory and analytical uses. To ensure that refillable containers for ozone-depleting substances are refilled and not discarded, undertakings should be required to produce a declaration of conformity that includes evidence of the arrangements for the return of refillable containers for the purpose of refilling, when placing them on the market.

(19)

Regulation (EC) No 1272/2008 of the European Parliament and of the Council (12) provides for the labelling of substances classified as ozone-depleting substances and the labelling of mixtures containing such substances. As it is allowed to release ozone-depleting substances produced for feedstock, process agents, essential laboratory and analytical uses for free circulation, those substances should be distinguished from substances that are produced for other uses.

(20)

It should be possible in exceptional cases to permit the export of products and equipment containing hydrochlorofluorocarbons where it could be more beneficial to allow those products and equipment to end their natural life cycle in a third country than to be decommissioned and disposed of in the Union.

(21)

Given that the production process for some ozone-depleting substances can result in the emission of the fluorinated greenhouse gas, trifluoromethane, as a by-product, such by-product emissions should be destroyed or recovered for subsequent use as a condition for the placing on the market of the ozone-depleting substance. Producers and importers should be required to document mitigation measures adopted to prevent emissions of trifluoromethane during the production process and to provide evidence of the destruction or recovery for subsequent use of those by-product emissions, in line with the best available techniques. A declaration of conformity should be provided at the moment of the placing on the market of the ozone-depleting substance.

(22)

In order to facilitate customs controls, it is important to specify the information to be submitted to customs authorities in Member States (the ‘customs authorities’) where ozone-depleting substances, products and equipment covered by this Regulation are imported or exported, as well as the tasks of customs authorities and, where relevant, market surveillance authorities, when they implement the prohibitions and restrictions on imports or exports of those substances, products and equipment. Regulation (EU) 2019/1020 of the European Parliament and of the Council (13), which sets out rules on market surveillance and control of products entering the Union market, applies to the substances, products and equipment covered by this Regulation in so far as there are no specific provisions that regulate in a more specific manner particular aspects of market surveillance and enforcement. Where this Regulation lays down specific provisions, for example on customs controls, those more specific provisions prevail, thereby complementing the rules set out under Regulation (EU) 2019/1020. In order to ensure protection of the environment, this Regulation should apply to all forms of supply of ozone-depleting substances that are subject to this Regulation, including distance sales as referred to in Article 6 of Regulation (EU) 2019/1020.

(23)

To avoid illegal trade in prohibited substances, products and equipment covered by this Regulation, the prohibitions established therein as well as the licensing requirements for trade should not only cover the entry of goods into the customs territory of the Union for release for free circulation, but also temporary storage and other customs procedures established under Union customs law. Licensing facilitations should be allowed for goods under temporary storage, in order to avoid unnecessary burden on operators and customs authorities.

(24)

The licensing system on imports and exports of ozone-depleting substances is an essential requirement under the Protocol for monitoring trade and preventing illegal activities in this respect. Licences should be time-limited to ensure that undertakings review the use of alternatives at regular intervals. In order to ensure automatic customs controls in real time, at shipment level, as well as the electronic exchange and storage of information on all shipments of substances, products and equipment covered by this Regulation that are presented to customs authorities, it is necessary to interconnect the electronic licensing system for ozone-depleting substances with the European Union Single Window Environment for Customs (‘EU Single Window Environment for Customs’) established by Regulation (EU) 2022/2399 of the European Parliament and of the Council (14). Given that interconnection with the EU Single Window Environment for Customs, it would be disproportionate to provide for a shipment licencing system in the Union.

(25)

To ensure that substances, products and equipment covered by this Regulation that have been illegally imported in the Union market do not re-enter the market, competent authorities of Member States should confiscate or seize those substances, products and equipment for disposal. The re-export of substances, products and equipment which does not comply with this Regulation should in any event be prohibited.

(26)

Member States should ensure that the customs office personnel or other authorised persons in accordance with national rules carrying out controls under this Regulation have the appropriate resources and knowledge, for example by way of training made available to them, and are sufficiently equipped to address cases of illegal trade in the ozone-depleting substances, products and equipment covered by this Regulation. Member States should designate the customs offices or other places that meet those conditions and are therefore mandated to carry out customs controls on imports, exports and in cases of transit.

(27)

Cooperation and exchange of necessary information between all competent authorities of Member States involved in the implementation of this Regulation, namely customs authorities, market surveillance authorities, environmental authorities and any other competent authorities with inspection functions, amongst Member States and with the Commission, is extremely important for tackling infringements of this Regulation, in particular illegal trade. Due to the confidential nature of the exchange of customs risk-related information, the Customs Risk Management System should be used for that purpose.

(28)

In carrying out the tasks assigned to it by this Regulation, and with a view to promoting cooperation and adequate exchange of information between competent authorities and the Commission in the case of compliance checks and illegal trade in ozone-depleting substances, the Commission should make use of the European Anti-Fraud Office (OLAF) established by Commission Decision 1999/352/EC, ECSC, Euratom (15). OLAF should have access to all necessary information to facilitate the performance of its tasks.

(29)

In order to ensure compliance with the Protocol, the import from and export to a State that is not party to the Protocol of ozone-depleting substances, and products and equipment containing those substances or whose functioning relies upon those substances should be prohibited.

(30)

The intentional release of ozone-depleting substances into the atmosphere, where such release is unlawful, is a serious infringement of this Regulation and should be explicitly prohibited. All feasible measures should be taken by undertakings to reduce the unintentional release of ozone-depleting substances into the atmosphere also considering their GWP. It is therefore necessary to lay down provisions on the recovery of used ozone-depleting substances from products and equipment and the prevention of leakages of such substances. Recovery obligations should also be extended to building owners and contractors when removing certain foams from buildings to maximise the reduction of emissions.

(31)

The requirement to recover ozone-depleting substances from foams in building material could spur innovation and research and development on demolition, reclamation and recycling technologies and could have positive effects on employment due to the labour-intensiveness of the decommissioning process and the need for more treatment capacity for those types of waste. It is therefore important to make available appropriate training programmes corresponding to the need for appropriately qualified natural persons to carry out the recovery of ozone-depleting substances contained in the foams.

(32)

It is necessary to lay down rules on ozone-depleting substances not controlled under the Protocol, listed in Annex II, considering the quantities produced and used in the Union as well as the effect on stratospheric ozone from emissions of those substances. There are other recognised issues affecting the ozone layer recovery in sectors outside the scope of this Regulation. These include nitrous oxide which, based on ODP-weighted emissions, is one of the most significant ozone-depleting substances remaining. Nitrous oxide constitutes the major part of anthropogenic emissions stemming from agricultural activities, an area which the Commission has committed to target following the Commission communication of 20 May 2020 entitled ‘A Farm to Fork Strategy for a fair, healthy and environmentally-friendly food system’. Another issue is intense wildfires, which it is important to prevent, as they can substantially increase stratospheric aerosol and hence have the potential to perturb stratospheric ozone.

(33)

Member States should report to the Commission on cases of illegal trade detected by competent authorities, including on the penalties imposed.

(34)

The use of halons should be allowed only for critical uses established in this Regulation. Member States should report on the quantities of halons installed, used or stored for critical uses, as well as on containment measures to reduce emissions of those substances and on progress made in identifying alternatives. That information is needed for knowing the halon quantities still available in the Union for critical uses, as well as for monitoring technological progress in that area to determine when halon is no longer necessary for certain uses.

(35)

The Protocol requires the reporting on trade in ozone-depleting substances. Producers, importers and exporters of ozone-depleting substances should therefore report annually on trade in ozone-depleting substances. Trade in ozone-depleting substances not controlled under the Protocol, listed in Annex II, should also be reported in order to be able to assess whether there is a need to extend some or all of the control measures applicable to ozone-depleting substances listed in Annex I to also cover those substances.

(36)

On behalf of the Union, the Commission reports annually to the Ozone Secretariat on the import and export of ozone-depleting substances controlled under the Protocol. Although Member States are responsible for the reporting of production and destruction of such substances, the Commission should provide draft data on those activities in order to facilitate the early calculation of the Union’s consumption by the Ozone Secretariat. In the absence of notifications extending the regional economic integration organisation clause, the Commission should continue that practice of annual reports while ensuring that Member States are provided with sufficient time to review the draft data provided by the Commission in order to avoid inconsistencies.

(37)

The competent authorities of Member States, including environmental authorities, market surveillance and customs authorities, should carry out checks, on a risk-based approach, in order to ensure compliance with this Regulation. Such an approach is necessary in order to target those activities which represent the highest risk of illegal trade in, or unlawful release of, ozone-depleting substances covered by this Regulation. In addition, competent authorities should carry out checks when in possession of evidence or other relevant information on potential cases of non-compliance. Where relevant and to the extent possible, such information should be communicated to customs authorities in order to carry out a risk analysis prior to controls, in accordance with Article 47 of Regulation (EU) No 952/2013 of the European Parliament and of the Council (16). It is important to ensure that where cases of infringements of this Regulation have been established by competent authorities, the competent authorities responsible for following up the issuance of penalties are informed in order to be able to impose the appropriate penalty where it is needed.

(38)

Member States should ensure that infringements of this Regulation by undertakings are subject to effective, proportionate and dissuasive penalties.

(39)

Member States should be able to lay down rules for criminal penalties or administrative penalties or both for the same infringement. Where Member States impose both criminal and administrative penalties for the same infringement, those penalties should not lead to a breach of the right not to be tried or punished twice in criminal proceedings for the same criminal offence (ne bis in idem), as interpreted by the Court of Justice of the European Union.

(40)

In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission as regards:

Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (17).

(41)

In order to supplement or amend certain non-essential elements of this Regulation, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission as regards:

It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Inter-institutional Agreement of 13 April 2016 on Better Law-Making (18). In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

(42)

The protection of individuals with regard to the processing of personal data by the Member States is governed by Regulation (EU) 2016/679 of the European Parliament and of the Council (19) and the protection of individuals with regard to the processing of personal data by the Commission is governed by Regulation (EU) 2018/1725 of the European Parliament and of the Council (20), in particular as regards the requirements of confidentiality and security of processing, the transfer of personal data from the Commission to the Member States, the lawfulness of processing, and the rights of data subjects to information, access to and rectification of their personal data.

(43)

The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725 and delivered formal comments on 20 May 2022.

(44)

According to settled case law of the Court of Justice of the European Union, it is for the courts of the Member States to ensure judicial protection of a person’s rights under Union law. Furthermore, Article 19(1) of the Treaty on European Union (TEU) requires Member States to provide remedies that are sufficient to ensure effective legal protection in the fields covered by Union law. In that respect, Member States should ensure that the public, including natural or legal persons, has access to justice in line with the obligations that Member States have agreed to under the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (21) of 25 June 1998 (the ‘Aarhus Convention’).

(45)

Since the objectives of this Regulation, namely to address the depletion of the ozone layer, thereby contributing to stratospheric ozone recovery, to reducing climate warming and to ensuring compliance with the Protocol, cannot be sufficiently achieved by the Member States but can rather, by reason of the transboundary nature of the environmental problem addressed and the effects of this Regulation on the intra-Union and external trade, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.

(46)

A number of amendments are to be made to Regulation (EC) No 1005/2009. In the interests of clarity, that Regulation should be repealed and replaced by this Regulation,