Examination of Witnesses (Questions 226
TUESDAY 26 MARCH 2002
226. We move on now to evidence from the European
Commission and we welcome Dr Tom Batchelor of Ozone Layer Protection
and Mrs Marianne Wenning, the Deputy Head of the Climate Change
Unit. Can I thank you both very much indeed for coming this afternoon
to give evidence to the Committee. I notice that you very patiently
sat through the previous evidence session. Having been very closely
involved in all the processes involved in the Regulation 2037/2000,
is there anything that you have heard from our previous witness
that surprised you? Is there anything to which you thought, "My
gosh! Is that what we have actually unleashed on the United Kingdom?
Is that what the reality is?" Is there anything which really
surprised you in what you heard?
(Mrs Wenning) Thank you, Mr Chairman,
and thank you for having us today to give evidence to this Committee.
We have given you also a number of documents
(Mrs Wenning)that we will be referring to during
the inquiry here. Coming back to your question, I thought it was
very interesting to hear the figures of the costs. For example,
if you will allow me to comment, normally we are looking at the
costs, but we are looking at the costs at the European level,
so we are not going into each Member State and what financial
implications there are, but we are looking at the European level,
so I thought that was interesting.
228. When you formulated the Regulation, did
you have discussions with the disposal industry within Europe
to talk through the practicalities of achieving the objectives
of the Regulation?
(Mrs Wenning) Mr Chairman, I am happy to respond to
your question, but I am wondering whether it would be useful if
we could give you an overview in order to give you our side of
the fence, and to put the picture in terms of how we have seen
this evolving, the Regulation and any further questions which
have been raised.
229. Well, we have, as you will have gathered,
got a series of areas that we would like to probe with you and
I am very happy if, at the appropriate time, you want to produce
any more detailed commentary that might help us, but obviously
the line of questioning that the Committee would like to pursue
is designed to try and get some kind of overview, hence my question,
if you like, arising from the previous evidence which was talking
about the practical nature of what this Regulation is designed
to achieve and also hence my question in asking you whether you
had had any discussions with the waste disposal industry within
the European Union about some of these practical points.
(Mrs Wenning) It is very difficult for both of us
to answer because at the time we both were not around, so I can
230. Okay. Let me come to the heart of one of
the issues which has concerned us here in the United Kingdom which
is the question of what in fact does this Regulation mean. During
the course of its negotiations, Article 15 was transmuted into
Article 16 and it seems that we come down to one thing, which
is this question of practicability actually to do what the Regulation
wanted to be done, namely that not just the gases, but the actual
CFCs in the foam should also be disposed of and the difference
appears to be that the rest of Europe understood that that is
what it was about and for quite a long period of time the United
Kingdom said that it did not understand what this was about. Could
you just help us to understand more clearly if there was any ambiguity
in the way that the Regulation was written? Was it entirely clear
in your minds what Article 16 meant, that everything which had
CFCs inside the fridge, foam and gas, had to be disposed of and
perhaps at what point in time did you become entirely clear that
that is what it was about? Why is it that the United Kingdom,
in your view, had some doubts about this?
(Mrs Wenning) Yes, you are right. The main part of
the Regulation which is of relevance to these discussions is what
is now Article 16 and that Article 16 has three, well it has more,
but there are three sub-paragraphs that are important to us. If
we look at Article 16.1 of this Regulation, that requires recovery
of ozone-depleting substances, such as CFCs, from refrigeration,
except domestic refrigerators and freezers, by 1 October 2000.
These domestic fridges and freezers are covered by Article 16.2.
They have a 15-month grace period after the Regulation came into
force to allow Member States to establish facilities for the recovery
and the destruction of CFCs. Then we come to Article 16.3 which
we consider as the sort of catch-all for ozone-depleting substances
that are contained in products that are not mentioned in Article
16.1 and 16.2, under the condition that it is practicable. So
foam is the product which is not mentioned under Article 16.1
and not under Article 16.2, so the recovery of ozone-depleting
substances, such as CFCs from foam, would be required, if practicable.
So for us it was never a question of whether there was the demand
to recover CFCs from foam, but always the question: is it practicable?
231. Can I just be clear because in the wording
in 16.2 it talks about "controlled substances" and,
if I have understood this Regulation correctly, the controlled
substance is the CFC. Is that right?
(Dr Batchelor) That is correct.
232. So is it right to say that it was an absolute
requirement of this Regulation that CFCs in whatever form they
were in a refrigerator, whether gas or contained, as our previous
witness described, within these bubbles in the foam, they had
to be disposed of under controlled circumstances? Is that right?
(Dr Batchelor) Yes, that is totally correct.
233. Because the evidence you gave a moment
ago seemed to suggest that because there were some CFCs in the
foam, they came into 16.3 which says "if [it is] practicable
[to do it]". The way I originally read it was that 16.2 gave
an absolute requirement that whatever the CFC was within the fridge,
it had to be disposed of in a controlled way.
(Dr Batchelor) No, we see it slightly differently.
There is 16.1 which is the disposal of the refrigerators and freezers
and that is from the 1 October 2000, as Marianne has already said.
Article 16.2 is purely based on domestic refrigerators and 16.3
is a catch-all for what is a product that is not in either paragraph
2 or paragraph 1, so this Regulation, by covering 16.1, 2 and
3, was very clear to us from the beginning, that no matter which
components of a refrigerator you were talking about, no matter
how you interpreted it, that required both the recovery of the
CFCs from the foam and from the compressor. We spent some time
actually with the UK in numerous discussions that we had with
them on this issue, both in the Management Committee and in private
discussions with the UK. We need to explain a little bit, I think,
about the role of the Management Committee in all of this because
this is a bit of a mysterious body in its functions. This is one
of the main vehicles of communication for Member States and the
Commission and when we get together there are typically 50 to
60 people in the room, including the interpreters, so this is
a fairly large event, and it occurs twice a year typically. The
main point of the Management Committee is to be transparent about
some of the finer details of the regulation, and we try to be
as sensitive as possible to particular concerns or any kind of
struggles with the implementation of the regulation. So at the
onset, if you wind your clock back to 1 October 2000, this is
a brand new regulation that is hitting the tables and we were
very sensitive to try to understand what these concerns were.
Just to finish with some comments about the Management Committee,
we produce the minutes of this Committee within ten days of the
end of the meeting. The minutes can be something like 15 to 16
pages long. In this particular correspondence here, we have supplied
to the Committee both the chronology of events and, also, supplied
the relevant parts of the Management Committee minutes that appertain
to this part of the discussions. I must say that, contrary to
Mr Peter Jones' comments, from our perspective the discussions
have always been led by DEFRA in the Management Committee meetings
and there has always been a very thorough explanation of what
the concerns were that were brought to the Management Committee
or that were brought to us in other meetings. That kind of explains
the Management Committee.
234. When you said that you produce the minutes
of the various meetings very quickly, what happens if somebody
objects to the minutes and queries them? What I am anxious to
try and understand is, was it the case that there was some ambiguity
in the way that the discussions at the Management Committee proceeded
that could have justifiably caused the United Kingdom to have
had doubt about this question of the foam, whereas other Member
States seem to be entirely clear? Did any other Member States
query whether this applied to the foam or not?
(Dr Batchelor) Just on process, Chairman, ten days
after the minutes are finished, that is the draft minutes. We
then send the minutes out to all the Member States who then have
the opportunity to comment on specific parts of the minutes. We
use the standard Microsoft Word "tracking procedures"
to understand the origin of the comments that come back. We then
reformulate the minutes which we then distribute to the members
of the committee ten days before the next meeting, so that usually
the first item on the agenda is the adoption of the minutes from
the previous meeting, the minutes having been corrected by the
Member States. In our discussions were there any questions on
this? I have to say that the UK was one of the more respondent
representations that did get back to us with any comments that
they had on the minutes, and I compliment them on getting back
to us very quickly on those. We made a number of extensive changes
in the minutes to fairly reflect their comments. So the comments
that you actually see before you in the chronology of communications
and in the pieces that we have taken from the Management meetings
reflect not only the views of the UK but, also, the views of the
other Member States that are in there. Yes, indeed, there are
some points that did create a lot of discussion. Perhaps we could
refer, Chairman, to the chronology of communicationsif
you have a copy there. Under item number 3, for example, we have
bullet point 2. This is 23 February 1999. If you could wind your
clocks back to 18 months before the regulation came into effect,
point 2 here states: "The Commission considers CFC recovery
could be difficult. The UK helpfully suggested that Member States
might share their experiences so that best practice could be identified.
The Netherlands referred to technology already in existence. The
Commission concluded that there should be some kind of policy
on recovery and destruction and we asked whether the Member States
were prepared to send information on how their recovery programmes
were working." Mr Chairman, we considered this a first alert,
if you like; that this is a very early signal before the regulation
came in that said "Look, this is a new facet to the regulation.
The indications are that there are Member States that are doing
it but this is not easy. So let us have some share of the information
here so that those who are not doing this can actually come up
235. Can I just be clear? Whilst I note what
you say about the fact that Member States decided that there could
be a use in pooling information on technology, was there any time
during the discussion on this regulation where any Member State,
including the United Kingdom, said "We do not think it practical
to recover CFCs from refrigerators" whether it was there
as a gas or incorporated within the foam?
(Dr Batchelor) I think there would have been one or
two Member States that would have questioned it, but onlyif
I may sayrather tepidly, nothing with the same heat of
the argument that the UK would have brought to the discussions.
Chairman: We may return to that in a moment.
236. Can I clarify a couple of points? Ms Wenning,
you made a comment and Peter Jones made it before, that the regulation
applying to the commercial facilities came in 15 months before
it applied to domestic refrigerators. So there was a lead-in period
and there was some experience to be gained from that commercially.
(Mrs Wenning) Yes, absolutely.
237. Secondly, just to reinforce a point that
has been made, the minutes of the Management Committee, when they
come to the Management Committee for ratification, are agreed?
(Mrs Wenning) Yes.
238. There is no doubt.
(Dr Batchelor) That is correct.
239. Why is it, in your view, that the United
Kingdom had so much difficulty with this? Looking at your schedule
of events, on 24 February 1999 there was a fairly extensive discussion
about the technology that was around.
(Dr Batchelor) We have actually asked ourselves the
same question as well. We can only go on the comments that were
made to us and, you understand, we can infer certain events might
or might not have happened back in the UK. I think one of the
first events for us was in October 2000 when, shortly after the
regulation came into effect, this is about three weeks afterwards,
we had another Management Meeting and DEFRA made it known to us
that the UK had not been aware of the considerable export trade
of 1-1.5 million domestic refrigerators per year, mainly to developing
countries. I think this was brought sharply into focus on 1 October
that year when the regulation came into force, that suddenly all
these exports were banned. There was a second event, too, Mr Chairman,
in that we believe that DEFRA was not aware in January 2001 that
in a typical refrigerator two-thirds of the CFCs are contained
in the foam and one-third is contained in the compressor cooling