Substances that Deplete the Ozone Layer

Since 2009 substances that deplete the ozone layer have been subject to Regulation (EC) No 1005/2009 on substances that deplete the ozone layer/⁶ which is a recast ^{[1] [2] [3] [4] [5] [6]}

of a regulation from 2000.^{[7] [8]} It is concluded in the preamble to the Directive that although there is clear evidence of a decrease in the atmospheric burden of ozone depleting substances (ODS), the full recovery of the ozone layer is not projected to take place before the middle of the twenty-first century. Most of the ODS also have high global warming potential and thereby contribute to global warming. 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. Through the regulation, the EU also implements decisions made by the Parties to the Montreal Protocol on Substances that Deplete the Ozone Layer.2⁸

The regulation lays down rules on the production, import, export, placing on the market, use, recovery, recycling, reclamation, and destruction of substances that deplete the ozone layer, and on the reporting of information related to those substances and to products and equipment containing or relying on those substances. Its scope of application covers the substances listed in Annex I (‘controlled substances’) and Annex II (‘new substances’), as well as products and equipment containing or relying on controlled substances. (Arts 1 and 2.) Among the controlled substances are chlorofluorocarbons (CFCs), halons, and hydrofluorocarbons (HCFCs).

The production as well as the placing on the market and use of controlled substances is prohibited. The same goes for the placing on the market of products and equipment containing or relying on controlled substances (Arts 4—6). However, a number of exceptions, set out in Chapter 3 of the Directive, apply to the prohibitions regarding both production and placing on the market. One such exception is that halons may be placed on the market and used for critical uses defined in Annex VI.

As a general rule, imports of controlled substances and of products and equipment other than personal effects containing or relying on those substances are prohibited. Also in this case a number of exceptions apply. Among the exceptions are controlled substances to be used for laboratory and analytical uses, as feedstock, or as process agents.

The release for free circulation in the EU of imported controlled substances is subject to quantitative limits determined by the Commission, which also allocates quotas to undertakings. Exports of controlled substances or of products and equipment other than personal effects containing or relying on those substances are also as a general rule prohibited, but the prohibition is subject to several exceptions. Imports and exports are both subject to an electronic licensing system set up and operated by the commission. Controlled substances and products and equipment containing or relying on controlled substances may not be imported from or exported to any State not party to the Montreal Protocol unless the non-party has been determined by the Parties to the Protocol to be in full compliance with that instrument. (Arts 15—20.)

Controlled substances contained in, inter alia, refrigeration, air-conditioning, and heat pump equipment shall, during the maintenance or servicing of equipment or before the dismantling or disposal of equipment, be recovered for destruction, recycling, or reclamation. Undertakings shall take all precautionary measures practicable to prevent and minimise any leakages and emissions of controlled substances. Specific requirements apply to undertakings operating refrigeration, air conditioning, or heat pump equipment, or fire protection systems, containing controlled substances. (Arts 22—23.)

The so-called ‘new substances’, which are much fewer than their ‘controlled’ counterparts, are listed in either Part A or Part B of Annex II. The former category is subject to prohibitions on production, import, placing on the market, use, and export similar to those that apply with respect to controlled substances. In Part B of Annex II the Commission shall, if appropriate, include any substances that are not controlled substances but that are found to have a significant ozone-depleting potential. If a substance listed in Part B is found to be exported, imported, produced, or put on the market in significant quantities the Commission shall, if appropriate, include it in Part A, thereby subjecting it to the prohibitions mentioned previously.

Regulation (EC) No 1005/2009 is based on the equivalent of the current Article 192 TFEU.

• [1] Communication from the Commission—A Clean Air Programme for Europe (18 December2013) COM(2013) 918 final, 2.
• [2] Ibid, 3. 22 Ibid, 3 and 5.
• [3] 23 Proposal for a Directive of the European Parliament and of the Council on the reduction of national
• [4] emissions of certain atmospheric pollutants and amending Directive 2003/35/EC, COM(2013) 920 final.
• [5] 24 Proposal for a Directive of the European Parliament and of the Council on the limitation ofemissions of certain pollutants into the air from medium combustion plants, COM(2013) 919 final.
• [6] (17 December 2013) COM(2013) 913 final. 26 Regulation (EC) No 1005/2009 of the European Parliament and of the Council on substancesthat deplete the ozone layer [2009] OJ L 286/1.
• [7] Regulation (EC) No 2037/2000 of the European Parliament and of the Council on substancesthat deplete the ozone layer [2000] OJ L 244/1.
• [8] Recitals 2—5.