Technical News January 2017
- Machinery Directive (MD)
- Outdoor Noise Directive
- Emissions from Non-Road Mobile Machinery Directive (NRMM Emissions)
- Low Voltage Directive (LVD)
- Electro Magnetic Compatibility Directive (EMCD)
- Product Safety and Market Surveillance Package
- Radio Equipment Directive (RED – former R&TTE)
- REACH and Nanomaterials
- RoHS2 Directive
- EU Ecolabel
- Ecodesign Directive
- Energy Labelling Directive
- Proposal for a Regulation on gas appliances
- Environmental Fields
- Standardisation Policy
- EU Patent
- European Consumer Policy
- Union Customs Code
- WTO dispute settlements
- Eco-Management and Audit Scheme
- Environmental Technology Verification (ETV)
- Governance of the Energy Union
- Energy Security Strategy
- Energy Efficiency Directive
- Revision of EU Emissions Trading Scheme
- Revision of the Regulation on fluorinated gases (F-gas Regulation)
The consultant in charge of the study on the evaluation of the Machinery Directive launched a series of targeted questionnaires (dedicated to different stakeholder groups, including industry associations and companies) in mid-October 2016. The input to these questionnaires can be submitted until 23 December.
The consultation process in the framework of the evaluation study is complementary to the European Commission open public consultation which was launched in September 2016.
Once the consultation activities have ended, the consultant will aggregate the results into a first findings report which is expected to be issued by the end of January 2017. The study’s conclusions will be presented in the final report which is expected to be published in April 2017.
The European Commission held its Machinery Working Group meetings on 9-10 November 2016. The meetings started off with a brief update on the horizontal items related to the Machinery Directive: the evaluation study, the updated Guide to the application of the Directive (edition 2.1, revised version from October), update on the 2016 activities of AdCo Machinery and on the CEN-CENELEC activities as regards the machinery sector.
As regards the update of the MD Guide, the Commission confirmed that stakeholders have the opportunity to provide comments on the latest text (issued in October) until 31 January 2017. To deal with those topics or comments where there are multiple interpretations and further discussions are needed, the Commission will set up an editorial group (sub-group of the Machinery WG) made of experts from the Member States and interested stakeholders to start working next year on the remaining controversial issues in the Guide. Once agreement within this group is reached, the Machinery WG will take decisions on the final text. Industry and other sector associations expressed interest in joining the editorial group and asked the Commission to ensure transparency and flexibility regarding the composition of the group and its procedures.
The review process of the Outdoor Noise Directive has been put on hold. The ODELIA study on the OND scope and limit values has been finalised (see final report). As a next step, the European Commission will launch an impact assessment study. It aims to assess possible changes in the OND, such as stricter noise limits and removal of third party certification, noise labelling and data collection. Although this study was supposed to start in the last quarter of 2016, the European Commission is currently drafting the technical specifications. Consequently, it is likely to start in spring 2017. The Commission legislative proposal to review the OND is delayed to the end of 2019.
The latest NRMM Expert Group (GEME) meeting on exhaust emissions from non-road mobile machinery took place on 7 December 2016. The Commission provided an update on the state of play for the Delegated and Implementing Acts, further to the publication of the main legislative Act (i.e. the Regulation (EU) 2016/1628) in the Official Journal on 16 September and its entry into force from 6 October. The DA and IA are currently being translated into all EU languages, and will be subsequently endorsed by the Commission on 19 December 2016.
The European Parliament and the Council are then expected to scrutinise the Delegated Acts only, and are given two months to object to them (therefore by mid-February 2017). Should there be no objection the DA and IA are foreseen to be published in early March and be fully applicable by the end of March. The Commission clarified during the meeting that manufacturers can voluntarily apply for type approval once the DA and IA become applicable (therefore mid- or end of March). This means that the real implementation date of the NRMM legislative package (Regulation accompanied by DA and IA) is likely to be the end of March 2017.
The mandatory type approval according to Stage V requirements will then be granted as of 1 January 2018 until 1 January 2020 (on the basis of the staggered Stage V placing on the market for the different engine categories). The next GEME meeting is planned to take place on 16 February 2017 (to be confirmed).
The latest LVD Working Party meeting was held on 28 October 2016. Following the approval of the final version of the Guide to the application of the LVD 2014/35/EU by the Working Party, the Guide was published on the European Commission website on 21 November. The revised guidelines introduce a number of clarifications, including the clear exclusion of medium-voltage and high-voltage products from the scope of the LVD (as requested by Industry) and the translation of the manufacturer’s address into the languages of the Member States where the equipment in question is made available.
Industry submitted a letter to DG GROW ahead of the LVD WP meeting on 28 October, making specific comments on the voltage limits and the language of instructions for the incorporation of B2B products into larger equipment.
The date of the next meeting has not been decided yet.
The Electro-Magnetic Compatibility Working Party meeting (initially scheduled for 19 December 2016) has been postponed and is likely to take place early next year.
The European Commission contracted Ernst & Young to carry out an ex-post evaluation on the application of the market surveillance provisions of Regulation (EC) No 765/2008. As part of the data collection exercise, the consultant launched an online survey on the evaluation of this Regulation, which ran until 30 November. The key objective of the evaluation is to perform a comparative analysis of the implementation of this Regulation across the 28 Member States and to examine the relevance, effectiveness, coherence, efficiency and EU added-value of the measures set out in the Regulation, on the basis of its results and impact on different stakeholders (Member States, industry).
The findings of this consultation are expected to feed into the Commission’s plans to revamp the market surveillance legal framework, and may guide the EU executive in identifying a suitable set of actions proposed in the Single Market Strategy.
The 2016 edition of the International Product Safety Week was organised in Brussels from 14 to 18 November, consisting of several meetings and conferences aimed at promoting international cooperation on developing policies for product safety, drawing lessons from product safety enforcement, and proposing ways forward in that regard.
New lists of harmonised standards in the framework of the Radio Equipment Directive 2014/53/EU were published in the Official Journal (on 11 November - C 416/5 and on 14 October C 381/1). However, Industry has recently raised the urgent issue of the timely availability of harmonised standards, the lack of which (under Articles 2.2 and 2.3 – essential requirements) will have a negative impact on the implementation obligations of manufacturers placing radio equipment on the market by 13 June 2017.
This problem is also causing legal uncertainty for manufacturers integrating radio modules into their equipment as they cannot use EN ETSI standards to obtain the presumption of conformity to the RED. If some harmonised standards under the RED are not listed in the Official Journal by 12 June 2017, Article 17.4 of the RED will require manufacturers to undertake third party certification for compliance with the essential requirements under Articles 3.2 and 3.3. This would undeniably generate additional costs and burden for the industry that is mostly using module A (self-declaration of conformity). As pragmatic solutions, Industry proposes the following, to be communicated by its members to national authorities:
- listing in the OJEU under the RED all existing harmonised standards that are listed under the R&TTED. Such listing could specify that presumption of conformity would be subject to the condition that manufacturers carry out a complementary impact assessment to demonstrate conformity with the requirements of Article 3.2 of the RED.
- changing the standardisation mandate under the RED to allow for the further use of R&TTED standards, at least for a provisional period of two additional years (until June 2019).
The RED TCAM WG meeting took place on 3 and 4 November 2016 to discuss the implementation of the RED, particularly the state of play of the RED Guide, combined equipment and the availability of RED harmonised standards.
Combined equipment (non-radio products incorporating a radio module) remains an open issue as there is no common understanding among authorities, the European Commission and TCAM on how non-radio products including a radio module should be handled under the RED. The issue of combined equipment is expected to be on the agenda of the next ADCO RED meeting in February 2017.
The latest draft RED Guide was made available on 11 November. Final comments can be submitted to this draft by 5 January 2017. The Commission plans to publish a first revision of the RED Guide in February, and envisages a second version (which will also integrate the controversial issues and open questions) in May 2017.
The European Chemicals Agency (ECHA) published its 7th recommendation to include further substances in the authorisation list (Annex XIV REACH) in early November: it recommended 9 new substances. Compared to the draft recommendation of November 2015, the 2 anhydride substances (Hexahydrophthalic anhydride – HHPA, and Methylhexahydrophthalic anhydride - MHHPA) were left out of the final list.
This is due to a change in their priority after the public consultation. However, these 2 substances will be reconsidered in the future. As regards lead compounds, 4 substances used in the manufacturing process of batteries remain on the priority list. Although the industry called for granting exemptions specifically for the manufacture of batteries, no exemption has been recommended. According to ECHA, the existing legislative framework provides insufficient protection for the environment and human health and does not encourage substitution. As a next step, the European Commission will discuss the inclusion of a new set of substances and related sunset dates with Member States (REACH Regulatory Committee) within the next few months.
As a reminder, the European Commission has already tabled a draft regulation amending REACH Annex XIV (see here):
It suggests including 12 additional substances in the authorisation list on the basis of ECHA’s 5th and 6th recommendations. The draft Regulation was submitted to EU Member States for vote in early December; the entry into force is expected in mid-2017.
In addition, ECHA has published a checklist for preparing an application for authorisation (AfA) for the use of an Annex XIV substance. This checklist distinguishes between chemical safety assessment, analysis of alternatives and socio-economic analysis.
- Communication in the supply chain
The REACH Candidate list, which now contains 169 substances, will be updated in January 2017 instead of December 2016. Five new substances may be identified as SVHC (see here) and, consequently, are included in the candidate list.
The ECHA Guidance on Substances in Articles is currently under review. The main discussion focuses on the implementation of the new interpretation of communication requirements at component level. Although the need to aggregate information is widely accepted, no compromise has been reached on the level of aggregation.
On a separate note, ECHA has published a case study illustrating where the supply chain information from REACH/CLP applies. It can also be used to help companies meet their obligations under the main occupational safety, health and environmental legislation. This case study is now available in 23 EU languages.
- 2018 registration deadline
The REACH Regulation put in place a staggered system to register “existing chemicals” (phase-in substances): the third and last registration deadline is approaching. Therefore, ECHA completed its toolkit to support companies for the 2018 registration deadline: it provides practical advice on the different steps to complete the registration process (see here).
In addition, ECHA updated the list of substances with a lead registrant, which now includes 7,996 substances.
As a reminder, manufacturers or importers of substances above one tonne a year in the EU/EEA market must register by 31 May 2018. In addition, manufacturers or importers of products (mixtures and articles) may need to register the substances they contain, for example if the substance is intended to be released under normal conditions of use. If not yet done, pre-registration is still possible until 31 May 2017 for substances manufactured or imported for the first time.
- 2017 REACH review
The European Commission has launched a public consultation on the review of the REACH Regulation, which runs until 28 January 2017 (the questionnaire is available in English, French and German). It evaluates strengths, weaknesses and shortcomings of this legislation in the light of 5 main criteria: effectiveness, efficiency, relevance, coherence and EU added value. The responses will be taken into consideration in the preparation of the Commission general report on the functioning of REACH, which is expected in June 2017. At this stage, the industry calls for improving REACH through its implementation rather than a revision of the Regulation.
- CLP implementation
On a regular basis, ECHA launches public consultations on the harmonised classification and labelling of different substances (see background information in the ECHA newsletter). A review of the nickel classification has been proposed notably to include its toxicity properties via oral and inhalation routes. This aims to limit occupational exposure in the workplace. Comments can be submitted until 16 January 2017 (see here). Nickel is used in metal surface treatment products as an intermediate, and in the manufacture of machinery and vehicles, fabricated metal products and electrical, electronic and optical equipment.
In addition, the ECHA Forum for Exchange of Information on Enforcement agreed to launch a project on classification and labelling mixtures including the check of relevant parts of the Safety Data Sheet. Although this project will be prepared in 2017, inspections will not take place until 2018 and the final results are expected by the end of 2019 (see here).
- Chemicals policy
Chemicals policy is still high on the political agenda and embedded in EU policies, such as the circular economy policy. In this context, the European Commission is developing 2 roadmaps: a plastic strategy and the chemical-waste interface. The substitution of hazardous substances is one of the top priorities: a new strategy will be developed in 2017. The Commission will also launch a specific study for a non-toxic environment strategy.
As announced earlier, the European Commission proposed an “EU Nanomaterials Observatory” instead of an EU-wide register to increase transparency on nanomaterials. ECHA has been mandated to develop and host a tool to collect information on products and safety aspects of nanomaterials in the EU market (see details in the agreement). The objective is to gather all available information in one place and present it in an easily understandable way to business, workers, consumers and authorities. This observatory is expected to be launched around summer 2017.
- RoHS exemptions
The European Commission and EU Member States (RoHS Expert Group) are currently evaluating the Öko-Institut recommendations on 29 renewal requests (Pack 9). Exemptions related to lighting equipment were addressed in September. Most lead-related exemptions, including lead in alloying elements, copper and solders, were discussed on 15 & 16 December 2016. The cross-industry platform had the opportunity to present industry concerns on Öko-Institut suggestions for rewording of exemptions and shorter review periods.
The Commission will now decide whether to renew exemptions or not and, accordingly, prepare the draft delegated acts in early 2017. In line with the better regulation principle, the Commission is likely to launch a 4-week public consultation on draft delegated acts. In addition, exemptions are likely to be renewed for the new equipment in scope (category 11) for a period of 5 years as from July 2019.
As a reminder, exemptions remain valid until the Commission takes a decision, at the earliest in spring 2017, even if they have already expired.
- New substance restrictions
A new group of substances, namely Small Brominated Alkyl Alcohols (SBAA), is currently being assessed as a possible candidate for restriction under the RoHS Directive (see background report). Comments were provided during the public consultation in October / November 2016 (see stakeholder comments). While some substances are used as intermediates, notably in the production of flame retardants, SBAA do not seem to be used in finished EEE. As a next step, the Danish authorities will decide whether it is relevant to submit a restriction dossier to the European Commission.
- RoHS scope review
The European Commission will table a proposal to revise the scope of the RoHS2 Directive. The inter-service consultation on the draft legislative proposal is now finalised and will be published in early 2017. Discussions will then start in the European Parliament and the Council. According to the draft proposal, this review tackles a series of problems that cannot be solved by exemptions and guidance:
1. the ban on secondary market operations (e.g. reselling, second-hand market) for new-in-scope equipment (a compliance date will be specified for newly-in-scope EEE and article 2.2 will be deleted);
2. the impossibility to repair with spare parts new-in-scope equipment once legally placed on the market before July 2019 (an exemption will be specified in Article 4.4 in line with other product groups);
3. the different treatment of cord-connected non-road mobile machinery and identical machinery powered by a battery or an engine that is currently excluded (NRMM powered through a traction drive will be excluded);
4. the uncertainty related to exemption validity for new-in-scope equipment (for category 11, exemptions will be valid for a maximum of 5 years from 22 July 2019);
5. the unmanageable deadline for providing a Commission decision on the renewal of existing exemptions 6 months before the expiry date (the deadline will be deleted).
The European Commission is currently assessing the future of the EU Ecolabel based on its effectiveness, take-up and EU added value: scrapping the whole framework has been considered. Although this voluntary scheme exists since 1992, its impact has been limited partly due to the co-existence of other national and sectoral labels.
In the context of a debate of the College of Commissioners on the future of the Ecodesign framework (October 2016), the Commission discussed other product policy issues including the EU Ecolabel.
It has been proposed to withdraw Ecolabel criteria for a series of products, notably tissue paper, newsprint paper, flushing toilets, urinals and sanitary tapware. However, a majority of EU Member States, environmental NGOs and consumer associations expressed their deep concern and strongly supported the voluntary EU Ecolabel scheme.
The Ecodesign Working Plan has finally been published as part of the “Clean energy for all Europeans” package. It lists 7 priority product groups for possible Ecodesign and energy labelling measures for the period 2016-2019, including refrigerated containers, building automation and control systems (BACS) and high-pressure cleaners. As a next step, specific preparatory studies will further investigate the potential improvement for each product group in terms of energy savings, but also resource efficiency.
With a view to embedding the Ecodesign framework in the circular economy policy, these studies will explore how to improve recyclability, durability, reparability of products and design for disassembly. These aspects will be considered not only for new product groups, but also upcoming reviews of existing Ecodesign measures, such as those for air conditioners, comfort fans and transformers. However, the European Commission stresses the need for verifiable and enforceable requirements as well as avoiding significant losses of performance or usefulness for consumers.
The Commission will develop a “tool box” including guidance for consideration of resources and material efficiency aspects. Although ICT products are not included in the priority product groups, the Commission will launch an in-depth assessment of gateways, mobile/smart phones and base stations in view of possible regulation through the Ecodesign framework.
Apart from the new product groups and reviews, the Commission’s priorities are the finalisation of ongoing regulatory work, better market surveillance and strengthened cooperation with international partners.
The Commission published the final guidelines (annexes) for voluntary agreements to help industry pursue self-regulation as an alternative to Ecodesign measures. These guidelines clarify the criteria for admissibility of a voluntary agreement, such as openness of participation, representativeness, monitoring and reporting.
Finally, measures on verification tolerances amending most of the existing Ecodesign (annexes) and energy labelling (annexes) regulations have been published. They ensure that verification tolerance values can only be used by Member State authorities for the purpose of verifying compliance. These values are not intended to be used by manufacturers and importers for technical documentation or for communicating better performance of their products.
Negotiations between the European Parliament and the Council on the proposed new EU Energy Label Regulation are still ongoing, although an agreement was expected by the end of 2016. Negotiators agreed on the rescaling mechanism: labels will be revised when 30% of products in a group fall into the ‘A’ class, or 50% of products fall into the top two efficiency classes ‘A’ and ‘B’.
However, the timeframe for rescaling existing labels is still under debate. As far as retailers are concerned, they will have to replace old labels with rescaled ones both in shops and online within 14 working days.
The major sticking point is a procedural aspect; negotiators do not agree on the type of comitology to apply for implementing measures: implementing acts versus delegated acts. Consequently, the Maltese Presidency will follow-up negotiations with the EP in early 2017. The new energy label framework is likely to come into force in mid-2017.
In view of the application of the new Gas Appliances Regulation (GAR) as from 21 April 2018 and of the transitional period between the two pieces of legislation, namely the Gas Appliances Directive (GAD) and GAR, and several industry associations representing gas appliance manufacturers addressed a letter to DG GROW in December 2016, to raise the following concerns.
Gas appliance manufacturers will need to undergo a new EU type examination under GAR, even for equipment which has already been assessed under GAD and is therefore compliant with the Directive’s essential requirements.
If a new certification under GAR is requested (even though these appliances have already been certified under GAD), there might be a general suspicion that these products are not safe. Furthermore, manufacturers will have to face additional costs for equipment which has already been certified.
The issue of Electromagnetic Fields (EMF) exposure for the general public is a recurrent subject in the European Parliament. On 7 December the Commission answered a written question by Florent Marcellesi (Verts-ALE) who expressed concern at electromagnetic waves at extremely low frequencies emitted from very-high-voltage power lines such as the one planned to run between Almassora and Morella (Castellón, Spain). In its response, the Commission outlined the 2015 SCENIHR Opinion confirming the validity of the levels recommended by EU legislation to protect the public.
Following the ad-hoc meeting of the sponsors of action 6 of the Joint Initiative on Standardisation (namely the Standards MArket Relevance Round Table) on 6 October. The Terms of Reference of SMAART are still pending.
The first SMAART meeting is foreseen to take place in February 2017, a few weeks before the first Committee on Standards meeting of the year.
In the context of Action 12 of the Joint Initiative on Standardisation, CEN-CENELEC hosted a workshop on 26 October entitled “From products to services. The evolving role of standards” focusing on current European services standardisation needs, and standardisation solutions to unlock the potential of the services market. Prior to this meeting, CEN launched a consultation on a draft standardisation strategy to support the services sector, which ran until 15 November. This strategy includes an action plan for 2017 and 2018, which was discussed and fine-tuned at the event on 26 October.
The Agreement on the Unified Patent Court (UPC) was ratified by the United Kingdom at the recent EU Competitiveness Council meeting in Brussels on 28 November 2016. This is regarded as one of the last steps towards the establishment of a single patent court for Europe, and with it the entire unitary patent regime in general.
The new Unitary Patent regime can come into effect only when at least thirteen Member States have ratified the Agreement on the UPC, including France, Germany and the UK. To date, eleven have done so, including France, with ratification procedures well advanced in Germany, Italy, Slovenia and Lithuania.
The European Patent Office (EPO) will grant Unitary Patents, making it easier to secure patent rights in Europe and provide greater country coverage than is possible today for the same investment. The last few ratifications should take place in the coming months with the UPC expected to start its work in mid-2017.
The European Consumer Summit held on 16 October in Brussels gathered policy-makers, researchers and the industry to discuss the review of EU consumer and marketing policy in the framework of a fitness check exercise (part of the Regulatory Fitness and Performance Programme). Consumer information requirements and the fairness of commercial practices and contractual terms were key topics addressed at the summit.
On 1 December the European Parliament adopted in Plenary a legislative report on laying down the Union Customs Code (UCC) for goods that have temporarily left the customs territory of the EU by sea or air. This legislative report, tabled by the Committee on Internal Market and Consumer Protection, aims at closing a legal gap in the original UCC Regulation by introducing a reformulated article to ensure effective application of customs supervision for these goods while moving by direct route between two points of the Union’s territory without a stop.
The original Regulation excludes the application of certain provisions to such goods, more specifically the obligations
(i) to lodge the entry summary declaration,
(ii) to notify the arrival of a sea-going vessel or an aircraft,
(iii) to convey the goods to certain places and to present them to the customs authorities at the point at which they are unloaded, and
(iv) on temporary storage. Therefore, this proposal should ensure equal treatment of goods and provide the required legal certainty for both customs authorities and industry. As a next step, it should be adopted by Member States in Council.
For background, the new UCC entered into force on 1 May 2016. The main changes brought about by the new Code are the provisions on non-preferential rules of origin, the end of the ‘first sale export rule’, the types of Authorised Economic Operator (AEO), and the application of binding tariff information (BTI).
While the substantive provisions of the UCC entered into force on 1 May 2016, a transition period before full implementation is granted until 31 December 2020. This is primarily due to the fact that there is a need to develop new IT systems or upgrade existing ones in order to fully implement the legal requirements. The detailed rules regarding the transitional period are contained in a Transitional Delegated Act and the UCC Work Programme. Further information on the UCC can be found here.
On 26 October, the European Union asked the WTO to establish a dispute settlement panel to examine China’s allegedly unfair export duties and export quotas on 12 raw materials, namely antimony, chromium, cobalt, copper, ferronickel, graphite, indium, lead, magnesia, talc, tantalum, and tin. This challenge to China’s export policy of raw materials is considered to be the EU’s reaction to China’s reluctance to align its legislation on the export of raw materials with its WTO commitments (see also here and here).
The EU request follows a request from the US earlier in October for dispute settlement over the same export restrictions, which also argued that the measures violated China’s WTO obligation and were aimed at giving Chinese industry an undue competitive advantage.
Following the election of Donald Trump in the United States, the future of the Transatlantic Trade and Investment Partnership (TTIP) is at stake. Mr Trump, who is decidedly not supportive of foreign trade agreements, has already declared as President-elect that he will not ratify the Trans-Pacific Partnership with Asian countries. His strategy towards trade with the EU remains unclear as a public statement from his side is still pending. In any case, as it is expected that it will take around six months to have the new US negotiating team in place, TTIP negotiations are foreseen to slow down in the first half of 2017.
In the meantime, ECORYS, an external consultant contracted by the European Commission, has published its draft final report in view of the sustainability impact assessment on TTIP (see here).
Industry has addressed a joint association letter co-signed by CECE, CEMA, CECIMO and EGMF to the European Commission to strongly encourage continuing the negotiations on TTIP as it remains a key and long-term priority for industry, with its objective of formulating a comprehensive and exemplary transatlantic agreement for the liberalisation of trade in products and services.
The Comprehensive Economic and Trade Agreement (CETA) between the European Union and Canada was adopted by the Council and officially signed on 30 October in Brussels during the EU-Canada summit. The next step in the process is the consent of the European Parliament, after which most parts of the CETA can be provisionally applied. As a first step, the International Trade Committee should cast its consent vote by January 2017, followed by the vote in plenary.
Recently, a motion to ask for the opinion of the European Court of Justice about the compatibility of the CETA investment provisions with the European treaties, which would have delayed the provisional application of the treaty, was not supported by the European Parliament.
Negotiations between the EU and Canada started back in 2009. In mid-2014, the conclusion of the EU-Canada negotiators was announced. Following the replacement of the investor-state dispute settlement (ISDS) arbitration system with the Investment Court System (ICS) at the request of the EU, the legal review of the text was completed in February 2016.
Industry widely welcomes the upcoming finalisation of CETA since it eliminates tariffs for engineering products, simplifies customs procedures and opens up public procurement to EU parties at both federal and regional levels in Canada.
The 17th round of the EU-Japan negotiations on a future Free-Trade Agreement took place in Brussels in the week of 26 September. Negotiations were conducted in working groups as in the previous round, covering specific topics ranging from trade in goods including market access to non-tariff measures and rules of origin.
EU observers believe a breakthrough by the beginning of 2017 is still possible. Disagreements remain over car industry regulations in the Japanese market, the amount of agricultural goods that could be exported to Japan, as well as tensions over the investment court system similar to the one to be established under CETA.
Japan is the EU’s second biggest trading partner in Asia after China. Together the EU and Japan account for more than a third of the world's GDP.
The 16th negotiating round between the European Union and Mercosur took place in Brussels on 10-14 October. This is considered a restart as it was the first
full negotiation round since 2012 and the first to be held since the exchange of first market access offers on 11 May 2016.
Negotiators discussed the full range of negotiating texts and rules. Views were exchanged on how to progress on market access issues, although no date has been set for the exchange of further offers. The next negotiation round is scheduled in Buenos Aires in March 2017 for which both sides agreed on intersessional work on a series of issues.
After four years of application of the EU-Korea Free Trade Agreement, the European Commission launched on 8 December an evaluation of its implementation by means of a public consultation.
The evaluation should examine the effectiveness the EU-Korea FTA in view of achieving its objectives and the relevance of the EU-Korea FTA regarding current trade issues faced by the EU. Deadline for responses is 3 March 2017.
On 2 December, European Commission President Juncker and Prime Minister of Vietnam Dung announced the formal conclusion of the negotiations for an EU-Vietnam Free Trade Agreement. On 1 February 2016, the preliminary text of the agreement was already published.
The legal review of the text has begun. The text will then be translated into all EU languages and into Vietnamese before being presented to the Council for ratification and the European Parliament for consent in early 2017. It is expected that the agreement can enter into force beginning of 2018.
Discussions on the EMAS framework occurred in the context of the Commissioners’ debate on the Ecodesign framework in October 2016. The European Commission stated that a broader reflection is needed on the future of EMAS, including whether it should be continued or not. This should be based on the effectiveness, take-up and EU added value of the EMAS framework.
In parallel, the European Commission published a study “The Success Drivers of EMAS in Selected Member States” in November 2016. The analysis consists of three case studies carried out in Austria, Italy and Germany. In addition, it identifies how to create win-win situations for both regulators and organisations.
As regards sectoral documents, the Joint Research Centre (JRC) is finalising the reference document for the electrical and electronic equipment manufacturing sector. The best practices will be published in early 2017. Then, the adoption of the final reference document (including performance indicators and benchmarks) is expected in June 2017. This document aims to provide guidance and inspiration to organisations to further improve their environmental performance.
The Polish Ministry of the Environment and the National Fund for Environmental Protection and Water Management will launch a specific funding scheme for Environmental Technology Verification (ETV) in early 2017.
In addition, a new Verification Body was accredited in July 2016 to verify water technologies (Institute for Ecology of Industrial Areas - IETU). Thus, verification bodies are accredited for all technology areas covered by the EU-ETV pilot scheme. More information is available here.
As part of its “Clean Energy for All Europeans” package (also referred to as the Winter Package), on 30 November the European Commission presented a proposal for a regulation on the Governance of the Energy Union. The objective of the regulation is to create a transparent and coherent management framework for reaching the EU energy package ambitious 2030 objectives.
The provisions of the Regulation will also ensure the EU and the Members States achieve their commitments under the Paris Climate agreement and UNFCCC. The Regulation aims at providing long-term regulatory stability and investment certainty in energy infrastructure and innovation.
In practice, the proposal introduces tools for monitoring and assessing progress in reaching the energy targets in each Member State by the mean of decennial “Integrated national energy and climate plans” for 2021-2030, decennial “long-term low emission strategies” for 2020-2030 and from 2021, biennial progress reports on the integrated national energy and climate plans and annual reports on greenhouse gas emission reduction.
The proposal also reduces the administrative burden on the Member States authorities and European institutions, streamlining and simplifying obligations and requirements. It streamlines and repeals 54 existing monitoring and reporting obligations of the energy and climate acquis by integrating 31 and deleting 23 of those obligations.
- Intergovernmental Agreements in energy
Following a “trilogue” procedure, the European Parliament, Council and Commission reached an agreement on 7 December in which the Commission will have a mandatory compatibility check ex-ante on Intergovernmental Agreements related to gas and oil. Member States will have to notify their draft
Intergovernmental Agreements related to gas and oil to the Commission before concluding them. Member States cannot sign these Intergovernmental Agreements until the Commission has issued its opinion. When concluding the proposed Intergovernmental Agreements, Member States will have to take utmost account of the Commission's opinion. Once endorsed by both Council and EP, the revised Intergovernmental Agreement Decision will be published in the Official Journal.
- Security of gas supply Regulation
The Energy Council held a policy debate on the security of gas supply regulation on 5 December.
A compromise was found on the main issues: regional cooperation, exchange of information on commercial gas contracts, and solidarity
- regional cooperation: based on groups of member states identified on the basis of the main risks for the EU's gas supply
- exchange of information: long-term contracts which provide 40% or more of annual gas consumption in the member state concerned would be notified to the competent authority. They would be assessed by the competent authority, with regard in particular to their impact on the security of gas supplies in the member state and the region
- solidarity: solidarity, together with general principles on compensation, should be defined in the text of the regulation, whilst member states should be allowed to take into account their specific national situation and possible different approaches to calculating compensation
- Security of Electricity Supply
As part of its “Clean Energy for All Europeans” package (also referred to as the Winter Package), on 30 November the European Commission presented a proposal for a regulation on risk-preparedness in the electricity sector. The proposed regulation replaces Directive 2005/89/EC on Security of Supply which offered a very broad framework of objectives to members States but had little operational value.
The proposed Regulation contains the following elements:
1. Common rules on crisis prevention and tools to ensure cross-border cooperation, including a designated competent authority in each Member State to be in charge of carrying out the tasks set out in the Regulation, a national risk-preparedness plan (to be updated every 3 years) ensuring maximum preparedness for electricity crisis situations and an effective management of such situations should they occur. The regulation sets out the specific content of the plans.
2. Guidelines for managing electricity crisis situations for Member States
3. A requirement for ENTSO-E to develop a methodology for identifying electricity crisis scenarios at regional level, and adequacy forecast for short-term (seasonal changes), week-ahead and intraday generation.
4. Evaluation and monitoring processes of electricity crisis.
The European Commission published the proposal to review the Energy Efficiency Directive (EED) on 30 November 2016, as part of the “Clean Energy for All Europeans” package (also referred to as the Winter Package). The European Commission (EC) considers that it is too early to review the whole directive as the main deadline to transpose it was in June 2014. Therefore, only nine articles are amended and Article 4 on building renovation is removed from this directive and added to the directive on Energy Performance of Buildings (EPBD).
Regarding Articles 1, 3 and 7, amendments are needed to add the 2030 30% binding energy efficiency target at EU level. There are no national binding targets for the Member States, but their indicative national energy efficiency contributions for 2030 will be notified in Member States' Integrated National Energy and Climate Plans. The calculation of the 1.5% of savings required for the 2020 to 2030 obligation period will be based on annual energy sales to final customers averaged over the three years preceding the start of that obligation period. Articles 9-11 are amended to make them applicable only to gas while complementing them with new, similar and clear provisions applicable only to district heating, district cooling and domestic hot water.
The default primary energy factor (PEF) in Annex IV is amended to take into account technological advances and is lowered from 2.5 to 2.0. Calculations of the PEF for electricity are based on annual average values. Annex V is also amended, to simplify how energy savings must be calculated, and to clarify which savings are eligible for the purposes of Article 7.
The European Parliament and the Council should start working on this proposal through the co-decision procedure early next year.
As regards implementation of the EED, the EC asked eleven Member States (Belgium, Bulgaria, Cyprus, the Czech Republic, Spain, Finland, Hungary, Lithuania, Luxembourg, Poland and Portugal) to ensure full transposition (the directive should have been transposed into national law by 5 June 2014).
In October, reasoned opinions were sent to these countries as the Commission identified gaps in the national legislation which transposes the directive. The Commission also sent reasoned opinions to France and the Netherlands in November for the same reason. These countries now have two months from the date of the reasoned opinion to comply with their obligations, after which the Commission may decide to refer these Member States to the EU Court of Justice and ask for financial penalties.
The European Parliament draft report on the EU ETS revision (“Cost-effective emission reductions and low-carbon investments”, Rapporteur Ian Duncan, CER/UK) was voted on by the ENVI Committee on 15 December in Strasbourg. 729 amendments were tabled on the Commission proposal and the basic act, touching upon the linear reduction factor, the auction share, free allocation and carbon leakage provisions, the use of auction revenues, compensation of indirect emissions costs, the Modernisation and Innovation Funds, as well as a possible review of the ETS in view of the stocktaking exercise envisaged in the Paris Agreement.
The F-Gas Consultation Forum met on 1st December 2016 in Brussels. Prior to the meeting, the European Commission released two reports.
The Report on barriers posed by codes, standards and legislation to using climate-friendly technologies in the refrigeration, air conditioning, heat pumps and foam sectors identifies standards related to the use of flammable refrigerants as the most important barrier. It is therefore suggested to update relevant standards at European level, to collect data and evidence enabling better risk minimisation approaches for all flammable refrigerants, and to review national codes, standards or legislation to take better account of technological developments.
At the meeting the Commission confirmed it would be more active on standardisation though it made clear that this is an industry-led process in which it will not be directly involved. The Commission notably intends to ask European standardisation organisations to work on updating relevant standards, in particular to maximise charge sizes and allow a more general use of risk management approaches for all refrigerants.
The Report on availability of training for service personnel regarding the safe handling of climate-friendly technologies replacing or reducing the use of fluorinated greenhouse gases considers that the legislative framework (notably related to health and safety at work) complemented by existing standards at European level appears appropriate to ensure safe handling of equipment working with alternative refrigerants.
However shortcomings are identified regarding the training offer, which could be problematic when meeting rising future demand. It is suggested to facilitate the development of training offer and access to training, notably by an active involvement of all stakeholders, by making available funding programmes and by raising awareness of existing rules and standards.
Other issues were also discussed at the meeting. The Commission indicated that the ratification process of the Kigali Agreement on an international HFC phase-down would start in early 2017. It was also confirmed that the EU phase-down scheme complies with the Kigali Agreement until 2030. The multi-pack discussion showed major differences of view between industry and NGOs, the consultant arguing that a ban is feasible technically, financially and in terms of energy efficiency.
All the meeting documents have now been published.
In addition, the Commission has now updated the guidance document for importers of pre-charged equipment reflecting the change related to the pooling option.
A code of conduct exists for member representation on outside bodies and is as follows:-
You have agreed to represent your trade association. Please try to follow these practice guidelines applying to all member representatives who are appointed to attend meetings with outside bodies:
1. Notify the relevant Association staff member of the dates and times of scheduled meetings.
2. Provide the relevant Association staff member with copies of any agendas, background papers or draft final documents sent to you direct by the conveners of meetings so that (a) the Association is aware of the subjects to be discussed and (b) comments and advice on the agenda topics can be given to you by other members and the member executive. If the outside body insists on confidentiality for its documents, the Director General should be informed.
3. If you are unable to attend a scheduled meeting, inform the relevant senior association staff member as early as possible.
4. Inevitably your company interest will remain important but remember that when representing the association at outside meetings you have a broader responsibility that includes consideration and representation of the interests of other members, including those of your commercial competitors.
5. If a point is put to you at a meeting on which you know or believe that opinion in the association is divided, make sure that your comments to the meeting are qualified.
6. When acting on behalf of the association exercise care and good judgement in providing outside persons or organisations with opinions or comment purporting to be an industry point of view.
7. Unless briefed in advance by an association committee or in discussion with the appropriate senior staff member, do not enter into formal agreement on any proposition put to you by the outside meeting, without the reservation that the agreement will need subsequent ratification - there may be implications that you have not taken into consideration.
8. As soon as possible after the meeting notify the appropriate senior association staff member of any decisions taken and/or the general direction of the discussions held. Preferably this should be done in a memorandum but if this not convenient, make a telephone call to keep the Association up-to-date.
9. If you have been appointed by an association committee be prepared to give that committee an oral account of your representation at its next scheduled meeting.
10. When the outside committee is disbanded or you resign from its membership, make sure that the association is informed.a next step, it should be adopted by Member States in Council.
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