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15.12.2012 Official
Journal
of
the
European
Union L
347/29
COMMISSION DECISION
of 13 December 2012
concerning national provisions notified by Austria on certain industrial greenhouse gases
(notified under document C(2012) 9256)
(Only the German text is authentic)
(2012/784/EU)
THE EUROPEAN COMMISSION,
(4) Austria has had national provisions on certain
fluorinated greenhouse gases since 2002. 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
Having regard to the Treaty on the Functioning of the European
gases, about these national measures (BGBl. II No
Union, and in particular Article 114(6) thereof,
447/2002 — Ordinance of the Federal Minister for Agri
culture, Forestry, Environment and Water Management
on bans and restrictions for partly fluorinated and fully
fluorinated hydrocarbons and sulphur hexafluoride,
Whereas:
published in the Federal Law Gazette on 10 December

2002) as subsequently amended by Ordinance BGBl. II
No 139/2007, 21.6.2007 (hereinafter ‘the Ordinance’).
(1) By
letter
of
27
June
2012
and
pursuant
to
Article
114(4)
of the Treaty on the Functioning of the European Union
(TFEU) Austria notified the Commission that Austria
(5) The
Ordinance
concerns
greenhouse
gases
classified
intends to maintain its national provisions on certain
under the Kyoto Protocol, most of which have high
industrial greenhouse gases which are more stringent
global warming potentials: hydrofluorocarbons (HFCs),
than Regulation (EC) No 842/2006 of the European
perfluorocarbons (PFCs) and sulphur hexafluoride (SF 6 ),
Parliament and of the Council of 17 May 2006 on
with a view of meeting Austria’s emission reduction
certain fluorinated greenhouse gases
(
targets. On 21 December 2007 the Commission

1 ) beyond
31 December 2012, the end date of the authorisation
decided with reference to Article 95(6) TEC (now
by Commission Decision 2008/80/EC of 21 December
Article 114(6) TFEU) to authorise Austria to maintain
2007 concerning national provisions notified by the
the provisions until 31 December 2012.
Republic of Austria on certain fluorinated greenhouse
gases ( 2 ), adopted in accordance with Article 95(6) of
the Treaty establishing the European Community (TEC)
(now Article 114(6) TFEU).
(6)
Since the adoption of Decision 2008/80/EC the circum
stances justifying maintaining more stringent provisions,
as laid out in that decision, persist. The national rules
remain part of a broader strategy put in place by Austria
in order to meet its emission reduction target under the
(2) Regulation
(EC)
No
842/2006
on
certain
fluorinated
greenhouse gases (F-gases) aims at preventing and
Kyoto Protocol and the subsequent burden sharing
containing the emissions of certain F-gases (HFCs, PFCs
agreement adopted at Union level. Under this
and SF
arrangement, Austria has undertaken to reduce its

6 ) covered by the Kyoto Protocol. It also contains
a limited number of use bans and placing on the market
greenhouse gas emissions by 13 % over the 2008-12
prohibitions when alternatives were considered available
period compared to the base years, 1990 and 1985.
and cost effective at Community level and where
improvement of containment and recovery were
regarded as not feasible.
(7) In
the
decisions
adopted
jointly
by
the
European
Parliament and the Council on the effort of Member
States to reduce their greenhouse gas emissions to meet
the Community’s greenhouse gas emission reduction
(3) The
Regulation
has
a
double
legal
base,
Article
175(1)
commitments up to 2020 (
TEC (now Article 192(1) TFEU) with respect to all

3 ), Austria has undertaken
to further reduce emissions by 16 % in 2020 compared
provisions but Articles 7, 8 and 9, which are based on
to 2005 levels.
Article 95 TEC (now Article 114 TFEU) due to their
implications in terms of free circulation of goods
within the Union’s single market.
( 3 ) Decision No 406/2009/EC of the European Parliament and of the
Council of 23 April 2009 on the effort of Member States to reduce
their greenhouse gas emissions to meet the Community’s greenhouse
( 1 ) OJ L 161, 14.6.2006, p. 1.
gas emission reduction commitments up to 2020 (OJ L 140,
( 2 ) OJ L 24, 29.1.2008, p. 45.
5.6.2009, p. 136).

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L 347/30
EN
Official Journal of the European Union
15.12.2012
(8) The
notified
measures
are
reported
to
have
significantly
— are likely to result in limited economic impact,
contributed to the reduction of greenhouse gas emissions
in Austria and avoided that an expected raise of those
— are not a means of arbitrary discrimination,
emissions have not materialised. The derogations
provided for in the Ordinance, as well as the possibility
to grant individual exemptions from the general ban,
— do not constitute a disguised restriction on trade
ensure the proportionality of the measure. Furthermore,
between Member States, and
it concerns only new equipment and allows the use of
fluorinated greenhouse gases for the servicing and main
— are thus compatible with the Treaty.
tenance of existing equipment so that unnecessary aban
donment of equipment is avoided.
The Commission therefore considers that they can be
(9)
While noting that the Ordinance has implications on the
approved.
free circulation of goods within the Union, the provisions
are general and apply to national and imported products
(12) The
Commission
may
at
any
moment
reassess
whether
alike. There is no evidence that the notified national
the conditions for the approval continue to be fulfilled.
provisions have been or will be used as a means of
This may, in particular, become relevant in the case of
arbitrary discrimination between economic operators in
substantial changes to Regulation (EC) No 842/2006 or
the Union. In view of the risks for the environment
to Decision No 406/2009/EC. Considering this possibility
resulting from the use of fluorinated greenhouse gases,
and the long-term commitments of the EU and its
the Commission confirms its assessment that the notified
Member States to reduce greenhouse gas emissions, a
national provisions do not constitute a disproportionate
limitation of the duration of the approval to a specific
obstacle to the functioning of the internal market in
date is not deemed necessary,
relation to the pursued objectives, in particular
considering the conclusions of the recent assessment of
HAS ADOPTED THIS DECISION:
the application, effects and adequacy of Regulation (EC)
No 842/2006 ( 1 ) that further measures for the reduction
of fluorinated greenhouse gas emissions are necessary to
Article 1
reach the agreed Union wide greenhouse gas emission
The national provisions on certain fluorinated greenhouse gases,
targets.
which Austria notified to the Commission by letter, dated
27 June 2012, and which are more stringent than Regulation
(10) The Commission is of the opinion that the request by
(EC) No 842/2006 with respect to the placing on the market of
Austria, submitted on 27 June 2012, for maintaining its
products and equipment containing or relying on fluorinated
national legislation more stringent than Regulation (EC)
greenhouse gases and to the use of such substances are hereby
No 842/2006 with respect to the placing on the market
approved.
of products and equipment containing or relying on
fluorinated greenhouse gases and to the use of such
substances is admissible.
Article 2
This Decision is addressed to the Republic of Austria.
(11) Moreover, the Commission confirms its Decision
2008/80/EC that the national provisions in the Ordi
nance:
Done at Brussels, 13 December 2012.
— meet needs on grounds of the protection of the
environment,
For the Commission
— take into account the existence and technical and
economic availability of alternatives to the banned
Connie HEDEGAARD
applications in Austria,
Member of the Commission
( 1 ) Report from the Commission on the application, effects and
adequacy of Regulation on certain fluorinated greenhouse gases
(Regulation (EC) No 842/2006), COM(2011) 581 final.

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Document Outline

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