Select Committee on Environment, Food and Rural Affairs Minutes of Evidence

Examination of Witnesses (Questions 240 - 259)




  240. You thought they were not aware?
  (Dr Batchelor) We thought they were not aware. We knew that because at the meeting that we held, when I mentioned that, there was considerable surprise from the DEFRA team, who said "Where did you get this information from? This is new information to us." We can only imply from that that they were not aware, from their comments.

  241. I am sorry, when was that?
  (Dr Batchelor) This was 24 January 2001.

  242. Notwithstanding what happened in October 2000?
  (Dr Batchelor) In October 2000 the first event, as I have said, which was the 1-1.5 million in trade, was the first knowledge gap. The second knowledge gap was on 24 January, and we know this date very precisely because we held this meeting with DEFRA in response to the letter of January 8. At that meeting we happened to be meeting, at the same time, with other Member States, the UK was present and we were talking about a CFC report. We agreed to meet with DEFRA at the end of that day, I think the meeting started at about 4 o'clock, and there were a lot of other Member States that were present at the same time. That second event came out. So, to us, the combination of these two factors—not knowing the large export trade, followed by not knowing that the majority of the CFCs were contained in the foam—in hindsight could have masked the importance to the UK of compliance with this part of the regulation and the difficulty that it would have in meeting this level of compliance. This is the only explanation we can use which would explain some of the text.

Paddy Tipping

  243. So you are saying to us that the UK is signed up to a Regulation which it did not understand the consequences of, first of all, in terms of the export trade, particularly into Africa, and, secondly, that they thought CFCs was really about the fluid rather than the amount in the foam?
  (Dr Batchelor) Yes, sir, I think you would have to draw that conclusion because for two years before those two events that I talked about, the Regulation was under development. It came into political agreement in December 1998 and in February 1999 there was the common position, so in going through all of those events, there was a lot of discussion typically on the Regulation.

  244. The other point I am not clear about is this phrase "if practicable". Tell us about the discussion with the UK about this phrase "if practicable". What does it really mean?
  (Dr Batchelor) This is, I will admit, a difficult term to interpret within the Regulation because it is not defined under Article 2, for example, where a lot of definitions are in the Regulation. However, we look at "if practicable" from the EC level and we would interpret it, and I think many other Member States have interpreted it the same way, that if somebody can do it somewhere in the EC, then it is practicable and we saw that not one, not two, not three, but four Member States came forward right at the beginning and said that it was practicable. In our later surveys, and we can talk—


  245. Can I stop you just there. When you said that at the beginning a number of Member States came forward, what do you call the beginning in this case?
  (Dr Batchelor) October 1 2000. Just more recently, Mr Chairman, we have also done another survey to find out precisely where they are in their compliance with this issue and we can report that there are now eight Member States which have reported significant recycling and recovery of CFCs from domestic refrigerators.

Paddy Tipping

  246. Finally for my part, when did the penny drop for the UK? When did they really understand the significance of all of this?
  (Mrs Wenning) As you can see from our table, it was the Management Committee on the 4 October where I think we very clearly said what we thought this Regulation would cover and that it was also practicable, so I think there could not have been a misunderstanding by all of the Member States of what was meant by the Regulation. However, when you go to the 25 October you see that despite this clear statement, the UK came back and asked some more questions on Article 16.2. Whilst, in our view, that was also covered by Article 16 (3) and under the "if practicable" clause, the UK did not seem to understand that that was the case and we, as my colleague said, in the Management Committee normally take the approach that we try to assist Member States in implementing the Regulation and understanding because sometimes, as you know, the language is not always easy. We came back and said, "Well, we are also willing then to go into this specific Article on domestic refrigeration and look into the possibilities and find evidence that it is in fact practicable", and that was also the questionnaire my colleague was just alluding to. We tried to gather more and more evidence from the Member States with the result that was just given to you.

  247. But that was on the 4 October 2000 and the 25 October 2000, but in notes of the meeting of the 11 and the 12 June 2001, point 13, it says: "The UK discussed the wording of 16(1) which led it to believe that recovery was not practical as described in the regulation", so there were still discussions, still problems as far as the UK was concerned as late as June 2001.
  (Dr Batchelor) Well, all we can say is that this was the UK view. We cannot prevent that view coming forward and that view certainly came forward.

  248. I am just asking from your perception when you think all the difficulties were resolved as far as the UK was concerned, when they accepted what the Regulation meant and what it meant for other Member States.
  (Dr Batchelor) Well, in terms of when the UK accepted it, I think you would have to say it was around about June of last year. We did not detect any earlier acceptance date than that date.


  249. Can I ask for the record when the Council of Ministers voted on this so that it was then agreed by a vote as opposed to a political decision in Council?
  (Dr Batchelor) It was published in the Official Journal on 29 June 2000, so it would have been adopted in the Parliament several weeks earlier.

  250. So, in other words, all the Member States agreed to this on the 29 June 2000?
  (Dr Batchelor) That is correct.

  251. Can I just ask, and you may not be able to answer this question now, nor would I necessarily expect you to, but at the back of the Regulation are a series of annexes which describe in some meticulous detail all of the substances in which the various CFCs occur to which this document relates. I wonder if you might be kind enough to identify for the Committee which bits refer to CFCs in foam. The reason I ask this question is that if everybody had signed up to it, they must have signed up knowingly to this level of detail because in your earlier comments you said there was a knowledge gap and normally officials go through these things in some detail to know what it is they are recommending to their Ministers to sign up to. Perhaps you can come back to us and let us know on that because I would find that particularly helpful.
  (Dr Batchelor) Sure.

Mr Borrow

  252. I am just puzzled over one thing and that is why the phrase "if practicable" still remained in the Regulation when I think by October 2000 it was clear from the discussions at the Management Committee meetings that it was considered to be practicable to dispose of the foam in domestic fridges and yet there was a clause within 16.3 of the Regulation which included the phrase "if practicable". From the UK perspective, if I was a politician here and had not been involved in discussions in Brussels over the Regulation and had simply seen the draft Regulation and had seen the phrase "if practicable", my interpretation of that as a layman would have been if it could be done, not technically, but if it was practicable given the capacity within the UK or any other Member State to carry out that particular process at that particular point in time when the Regulation came in, whereas I think your interpretation and the interpretation of the Commission was that if the technology existed to practicably dispose of the foam, then that was the definition of "if practicable".
  (Mrs Wenning) Yes, the situation was that the common position was adopted in February1999 and once the common position is adopted, then it goes into a sort of second reading by the European Parliament and after that, if there is agreement, then the Regulation is adopted. In that time period, there was no mention of this particular Article, so there was no discussion in the Parliament and, therefore, also later on between the Parliament and the Commission and the Council on this specific issue which means that we are not then changing the text of the Regulation which has basically been agreed and, therefore, it is in that process between the common position and the adoption of the Regulation that there is not any amendment on this specific clause, on the "if practicable". Also I think what we have been trying to show through our chronology is that we also had established in the process that indeed it was practicable and at first there were a couple of Member States which showed us the technology, mainly Sweden and we had a workshop there, so that was the hook on which we could develop policy and then over the years we learned and we saw that more and more Member States were in a position to do it. I think that is the explanation why the term "if practicable" has not been taken out, because there was no opportunity to do so.

  253. I am not really up on these sorts of things, but when the meetings take place in the Management Committee, is it decision by consensus or is there a vote on these things? It seems that the UK representatives at the Management Committee seemed fairly consistently to have had worries about the meaning of "practicable" in the regulation. As you mentioned earlier, I think it was not until early summer 2001 that there seemed to be UK acceptance of what the regulations were considered to be by the rest of the Member States. Therefore, it seems to be that from September/October 2000 until the early summer of 2001 the UK representatives did not accede to what was clearly the consensus amongst other Member States. Would that be an accurate description of what happened?
  (Mrs Wenning) There are different ways in which the Management Committee can serve. One, as Mr Batchelor said, is that it helps with implementation, but also, sometimes, there are possibilities for the Commission, if there is need by the Commission to make a specific proposal, to detail certain areas of the regulation in a way so that they are very clear, or become clearer, to the Member States. In the first case, when it is a matter of interpreting the regulation—as it was in this case "if practicable", what it means—it is not really a proposal by the Commission that we bring forward to the Management Committee and then have to vote about; it is something that we are trying to find a consensus on, but obviously the Commission is bound also in its interpretation of what we have known from history. Again, that was said before, that in the common position already it was very clear to us that it was covered; the CFCs from foam recovery was in there and the "if practicable" clause was in there. In this case there is no vote. In other cases where we make specific proposals—for example, guidelines in order to help implement a regulation or directive—then we bring this to the Committee and we have normal majority voting. Then there are procedures if the Committee accepts it or if it does not accept it—what happens then—but in this case that was not an issue to vote about.


  254. The UK, at no stage in the process, attempted to take those words "if practicable" out of the regulation?
  (Dr Batchelor) Not in the Management meeting, no.

  255. What about Council?
  (Dr Batchelor) I am not aware of any moves in Council, although there could have been, but we were not in the Council meetings to see whether that was the case, Mr Chairman.

  256. If that had occurred you would have known afterwards?
  (Dr Batchelor) Yes, I think so. We were not aware of any discussions in the Council of 16(1), (2) or (3), or, as you rightly said, it was 15(1), (2) and (3) as it was going through Council. So, as far as we know, there was not a debate about those particular issues. We know that there was a modification, and that was it.

Mr Lepper

  257. You said, way back at the start of your evidence, that as far as you were aware it was always DETR, as it was, DEFRA as it now is, which took the lead from the UK's side in Management Committee meetings.
  (Dr Batchelor) Yes.

  258. DTI representatives were present, however.
  (Dr Batchelor) Yes, they were.

  259. However, there was no doubt about which department appeared to be the lead department.
  (Dr Batchelor) Yes. To be perfectly correct, DEFRA used to take the lead; sometimes there would be some consultation with DTI, sometimes DTI would make a comment to the Committee about a particular area, but I think my memory would be correct in saying that mostly it was DEFRA that took the microphone in the Committee.

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