Correspondence from the Department of
the Environment, Transport and the Regions to the European Commission
30 January 2001
EC REGULATION 2037/2000
Since EC Regulation 2037/2000 entered into force
we have received a large number of queries from interested parties
concerning the definition and interpretation of various elements
of this Regulation. As you know, some of the matters raised have
already been brought to the attention of the Commission and are
in the process of being considered however none to my knowledge
have been brought to a final conclusion.
Below is a brief outline of the more pressing
matters that remain outstanding in the UK:
ARTICLE 4: Except for uses listed in Annex VII,
fire protection systems and fire extinguishers containing halons
shall be decommissioned before 31 December 2003, and halons shall
be recovered in accordance with Article 16.
There is some confusion as to how this applies
to shipping in general. Our legal advice indicates that EC Regulation
2037/2000 applies to the EU (land and water) only. However, there
is a conflicting opinion that EC Regulation 2037/2000 would also
apply to any vessels registered in the EU, regardless of what
waters they may occupy. In other words, even if an EU registered
vessel never entered EU waters, EC Regulation 2037/2000 would
apply and therefore the forced halon decommissioning would also
apply. Naturally this could place EU vessels elsewhere at a disadvantage.
However, even if the logic of our legal advisors
were to be followed the situation remains problematic. For example,
denying access to EU waters when the vessel in question is importing,
exporting or simply passing through would be tantamount to a trade
barrier, no matter what flag they were flying. Limiting application
of the Regulation to those vessels that "live" in EU
waters would then require a definition (ie is a vessel that is
primarily in EU waters but wanders in and out from time to time
a "resident"? Is there a time frame involved?) If a
non-resident ship travelling through EU waters does have to discharge
its system, can they refill? It would seem difficult to enforce
decommissioning and replacement/retrofit, if not impossible in
many cases. Particularly in the case of foreign owned vessels.
Use of other controlled substances in shipping would create similar
problems, ie CFCs in refrigeration.
ARTICLE 5: Article 5 prohibits the use of certain
HCFC equipment produced after 31 December 1999, 31 December 2000,
30 June 2002, and finally 31 December 2003.
When is a system a new system and would this
prohibition in any instance cover a retrofit? For example, if
during a retrofit the compressor of a CFC system were to be replaced
with one that utilised HCFCs, would that compressor be "equipment"
and therefore included in any "equipment produced after"
prohibition or would the crucial date remain that of the original
system being adapted?
ARTICLE 11: Article 11 allows the export of products
and equipment containing halon in order to satisfy critical uses
listed in Annex VII.
It has been suggested that this would include
cylinders up to 300kg in weight as they are considered "parts
of systems" and not bulk export, which is prohibited. However,
we have not yet had confirmation of this interpretation and understand
the Commissions lawyers are still considering the issue. In the
meantime, I presume that it is in order to allow cylinders containing
up to and including 300kg of halon to be exported for critical
ARTICLE 16: Controlled substances contained in
domestic refrigerators and freezers.
Would "controlled substances contained
in domestic refrigerators and freezers" cover the refrigerant
only or those substances contained in the foam as well? It could
be argued that the foam is a separate product and not "contained
in". If this were the case would the "if practicable"
wording of Article 16 (3) rather than the "shall be"
of Article 16(2) apply? As this greatly impacts the export of
second hand fridges containing CFC blown foam, a final interpretation
is required urgently.
ANNEX VII: For the making inert of occupied spaces
where flammable liquid and/or gas release could occur in the military
and oil, gas and petrochemical sector, and in existing cargo ships.
Was it the intention for all "cargo ships"
to be included or just those "where flammable liquid and/or
gas release could occur in the military and oil, gas, and petrochemical
sector". If this critical use covers any "cargo ship"
could we have further clarification of the term "cargo ship"
itself? Does the Commission think this use might be narrowed down
when the annual review is undertaken?
I appreciate that most of these questions pose
considerable problems and are currently being addressed by the
Commission. However, lack of a final resolution is creating uncertainty
and contributing towards difficulties in compliance by industry.
I would therefore be grateful if the Commission could consider
these issues over the next month or so, seeking further legal
advice where necessary to enable Member States to agree appropriate
clarification at the next Management Committee meeting.