1. Overview

In pursuit of the environmental aims set by Kyoto Protocol (COP3, 1997), the European Union has taken several measures in order to reduce gas emissions causing the global greenhouse effect. Among these gases, the most important are Carbon Dioxide (CO2), Methane (CH4), Nitrous Oxide (N2O) and the Fluorinated gases (“F-gases”), which are Hydrofluorocarbons (HFCs), Perfluorocarbons (PFCs), Sulfur Hexafluoride (SF6) and Nitrogen Trifluoride (NF3).

With respect to “F-gases”, the European Union firstly enacted Regulation No. 842/2006, which was implemented by Italy through Presidential Decree n. 43 of 2012 (in relation to general rules) and Legislative Decree n. 26 of 2013 (in relation to sanctions). Afterwards, the EU enacted Regulation No. 517/2014, which abrogates the Regulation introduced in 2006 - in effect since January 1st 2015. Recently, Italy implemented the European act through Presidential Decree n. 146 of 2018.

2. What are Fluorinated gases?

In accordance to EU Regulation No. 517/ 2014, art. 2, Fluorinated gases are “hydrofluorocarbons, perfluorocarbons, sulphur hexafluoride and other greenhouse gases that contain fluorine, listed in Annex I, or mixtures containing any of those substances”.

More simply put, hydrofluorocarbons are frequently used in air conditioning and as refrigerants, perfluorocarbons are used as solvents, refrigerants and fluoropolymers, while sulphur hexafluoride is used in the electrical industry and for the casting of magnesium.

3. European Regulation

EU Regulation No. 517/2014 provides for measures of prevention of emissions of Fluorinated greenhouse gases. It establishes periodical leak checks of equipment containing “F-gases”, requires leakage detection systems to be installed on the equipment, imposes record keeping for each piece of checked-for-leaks equipment and mechanisms of recovery, recycling and destruction. Moreover, it promotes producer responsibility schemes.

The European rules aim at reducing the quantity of hydrofluorocarbons placed on the market through the prohibition of several enlisted products and equipment. Moreover, EU provisions require an obligation to report on production, import, export, feedstock use and destruction of the substances.

A major aspect of EU Regulation is the system of allocation of quotas for placing hydrofluorocarbons on the market. The Commission determines a quota of quantities of hydrofluorocarbons placed on the market, which is reported in the Registry established by the Commission, for each producer or importer.

Non-compliance with the EU Regulation entails penalties, which have to be devised by Member States. In addition, the Regulation provides for proportional reductions of quotas in case of violation of the allocation rules.

Lastly, the Regulation establishes a Consultation forum in order to ensure a balanced participation of Member States in the implementation process of the EU rules on “F-gases”.

In comparison with the previous European act, Regulation 517/2014 increases the amount of controlled equipment, introduces mandatory leak-check mechanisms, creates the quota system and enhances producers’ liability.

4. Italian Regulation

Presidential Decree No. 146/2018 implements the 2014 EU Regulation, on the basis of the opinion provided by the State Council (September 6th 2018, No. 00759).

The presidential act appoints competent authorities (i.e. Ministry of the Environment, which relies on ISPRA - “High institute of environmental protection and research”) and independent control bodies in order to undertake the enforcement of EU rules.

It establishes the National Registry of certified physical and legal persons and creates the National Database – managed by the chambers of commerce - for the storage of information relating to Fluorinated gases and equipment. Moreover, such National Database gathers information on recovery, recycling and destruction of equipment containing “F-gases”.

The Italian provision establishes rules on equipment labels, mechanisms of information transmission, the procedure for the designation of bodies in charge of certifying physical and legal persons and the procedure for the recognition of certificates issued by other Member States.

With respect to sanctions, it has to be pointed out that Presidential Decree No. 146/2018 does not provide for any punitive regime. Due to such a normative vacancy, on September 13th 2018, the State Council recommended the Government to enact a decree in order to implement the EU Regulation. Even today, however, Italian Government is failing to meet the EU obligations (art. 25 of EU Regulation No. 517/2014).