Table 5 Legal background to an emission tax on nitrous oxide in the health sector

The European Union Emissions Trading System has been covering nitrous oxide as a greenhouse gas since 2013 but only in the energy and industry sectors. Individual member states, such as Germany, limit their CO₂ tax to the areas of heat and transport; thus, they do not include the health sector [1]. Therefore, consideration should be given to extending the tax obligation to nitrous oxide in the health sector at the European level or at the national level by adapting the German Fuel Emissions Trading Act [2] and comparable regulations in other countries. Insofar as gaps remain in European emissions trading regulations, national emissions trading can also take effect (section 1 of the German Fuel Emissions Trading Act). German law refers to the list of goods in the European Combined Nomenclature [3]; thus, it would only have to be expanded to include the nitrogen oxides already listed in the nomenclature (CN 2811 29 30).

From the authors' perspective, the fiscal way to curb the use of nitrous oxide in the health system seems more efficient than a regulation based on national health law. In Germany, in particular, this would otherwise require lengthy procedures and the involvement of a wide range of interest groups and stakeholders in the health care system, for example, in the case of an adjustment of the hospital treatment guideline of the Joint Federal Committee to exclude nitrous oxide-based methods [4] or an adjustment of billing and remuneration regulations. Regardless, a single pan-European solution would not be achievable via health law due to the different legal structures of the EU member states.

[1] German Emissions Trading Authority (2019), Factsheet European Emissions Trading 2013-2020. Retrieved from https://www.dehst.de/SharedDocs/downloads/DE/publikationen/Factsheet_EH-2013-2020.pdf?__blob=publicationFile&v=7

[2] Section 2 (1) and Annex 1 of the Act on National Certificate Trading for Fuel Emissions (Fuel Emissions Trading Act) of 12 December 2019, last amended on 3 November 2020.

[3] Combined nomenclature as referred to in Article 1 of Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by the corrigendum to Commission Implementing Regulation (EU) 2021/832 of 12 October 2021, OJ EU L 414, 19 November 2021.

[4] Directive of the German Federal Joint Committee on examination and treatment methods in hospitals in the version of 21 March 2006, last amended on 16 September 2021, BAnz AT 25. November 2021 B2.