(1)

Articles 3(2)(i)(d) and 4(2)(i)(d) of Regulation (EC) No 2037/2000 prohibit the production, import and placing on the market of methyl bromide for all uses after 31 December 2004 except, among others (2), for critical uses in accordance with Article 3(2)(ii) and the criteria set out in Decision IX/6 of the Parties to the Montreal Protocol, together with any other relevant criteria agreed by the Parties. Exemptions for critical uses are intended to be limited derogations to allow a short period of time for the adoption of alternatives.

(2)

Decision IX/6 states that methyl bromide should qualify as ‘critical’ only if the applicant determines that the lack of availability of methyl bromide for that specific use would result in a significant market disruption; and that there are no technically and economically feasible alternatives or substitutes available to the user that are acceptable from the standpoint of environment and health and are suitable to the crops and circumstances of the nomination. Furthermore, the production and consumption, if any, of methyl bromide for critical uses should be permitted only if all technically and economically feasible steps have been taken to minimise the critical use and any associated emission of methyl bromide. An applicant should also demonstrate that an appropriate effort is being made to evaluate, commercialise and secure national regulatory approval of alternatives and substitutes; and that research programmes are in place to develop and deploy alternatives and substitutes.

(3)

The Commission received 79 proposals for critical uses of methyl bromide from nine Member States including Belgium (44 070 kg), France (259 097 kg), Germany (19 450 kg), Ireland (1 250 kg), Italy (1 333 225 kg), Poland (45 900 kg), Portugal (50 000 kg), Spain (986 000 kg), the Netherlands (120 kg) and the United Kingdom (139 285 kg). A total of 2 878 397 kg was requested, comprising 2 690 275 kg (94 %) for pre-harvest uses and 188 140 kg (6 %) for post-harvest uses of methyl bromide. Germany subsequently informed the Commission that it had withdrawn all of its proposals as alternatives were now available.

(4)

The Commission applied the criteria contained within Decision IX/6 and Article 3(2)(ii) of Regulation (EC) No 2037/2000 in order to determine the amount of methyl bromide that is eligible to be licensed for critical uses in 2006. The Commission found that adequate alternatives were available in the Community and had become more prevalent in many Parties to the Montreal Protocol in the period since the critical use proposals were compiled by Member States. As a result, the Commission determined that 1 607 587 kg of methyl bromide can be used in 2006 to satisfy critical uses in each of the Member States that had requested the use of methyl bromide. This amount equates to 8,4 % of 1991 consumption of methyl bromide in the European Community and indicates that more than 91,6 % of the methyl bromide has been replaced by alternatives. The critical-use categories are similar to those defined in Section IIB in Decision XVI/2 (3) and in Table A of Decision XVII/9 at the 17th Meeting of the Parties to the Montreal Protocol (4).

(5)

Article 3(2)(ii) requires the Commission to also determine which users may take advantage of the critical use exemption. As Article 17(2) requires Member States to define the minimum qualification requirements for personnel involved in the application of methyl bromide and, as fumigation is the only use, the Commission determined that methyl bromide fumigators are the only users proposed by the Member State and authorised by the Commission to use methyl bromide for critical uses. Fumigators are qualified to apply it safely, rather than for example farmers or mill owners that are generally not qualified to apply methyl bromide but who own properties on which it will be applied. In addition, Member States have put in place procedures to identify fumigators within their territory that are permitted to use methyl bromide for critical uses.

(6)

Decision IX/6 states that production and consumption of methyl bromide for critical uses should be permitted only if methyl bromide is not available from existing stocks of banked or recycled methyl bromide. Article 3(2)(ii) states that production and importation of methyl bromide shall be allowed only if no recycled or reclaimed methyl bromide is available from any of the Parties. In accordance with Decision IX/6 and Article 3(2)(ii), the Commission determined that 50 047 kg of stocks are available for critical uses.

(7)

Article 4(2)(ii) states that, subject to Article 4(4), the placing on the market and the use of methyl bromide by undertakings other than producers and importers shall be prohibited after 31 December 2005. Article 4(4) states that Article 4(2) shall not apply to the placing on the market and use of controlled substances if they are used to meet the licensed requests for critical uses of those users identified as laid down in Article 3(2).

Therefore, in addition to producers and importers, fumigators that are registered by the Commission in 2006 would be allowed to place methyl bromide on the market, and to use it for critical uses, after 31 December 2005. A fumigator typically requests an importer for both the importation and supply of methyl bromide. Fumigators registered for critical uses by the Commission in 2005 would be permitted to carry over to 2006 any remaining methyl bromide that had not been used in 2005 (referred to as stocks). The European Commission has put in place licensing procedures to deduct such stocks of methyl bromide before any additional methyl bromide is imported or produced to meet the licensed requests for critical uses in 2006.

(8)

Three uses of methyl bromide in this Decision are categorised as ‘biocidal’ uses for which additional restrictions apply. Commission Regulation (EC) No 2032/2003 (5) records methyl bromide as a biocidal substance that cannot be placed on the market after 1 September 2006. The Commission may authorise a Member State to use methyl bromide after this date provided the Member State demonstrates compliance with the criteria for an ‘essential use’ under Article 4a of Regulation (EC) No 2032/2003. The quantities of methyl bromide for biocidal uses for which an ‘essential use’ authorisation pursuant to Regulation (EC) No 2032/2003 is required for any uses after 1 September 2006 are shown in Annexes I, IV and VIII of this Decision.

(9)

As critical uses of methyl bromide apply from 1 January 2006, and for the purpose of ensuring that interested companies and operators may benefit from the licensing system, it is appropriate that this present decision shall apply from that date.

(10)

The measures provided for in this Decision are in accordance with the opinion of the Committee established by Article 18 of Regulation (EC) No 2037/2000,