Examination of Witnesses (Questions 240
TUESDAY 26 MARCH 2002
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
(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 factorsnot
knowing the large export trade, followed by not knowing that the
majority of the CFCs were contained in the foamin 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.
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.
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
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
(Dr Batchelor) Sure.
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 regulationas it was in this
case "if practicable", what it meansit 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 proposalsfor example, guidelines
in order to help implement a regulation or directivethen
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 itwhat happens thenbut 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
(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.
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