# CE2008122EN.01001901.xml

| 20.5.2008 | EN | Official Journal of the European Union | CE 122/19 |
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20.5.2008

EN

Official Journal of the European Union

CE 122/19

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COMMON POSITION (EC) No 13/2008

COMMON POSITION

adopted by the Council on 18 April 2008

with a view to adopting Directive 2008/.../EC of the European Parliament and of the Council of ... amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emmission allowance trading within the Community

(2008/C 122 E/03)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 175(1) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Economic and Social Committee (1),

1

Having regard to the opinion of the Committee of the Regions (2),

2

Acting in accordance with the procedure laid down in Article 251 of the Treaty (3),

3

Whereas:

| (1) | Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community (4) established a scheme for greenhouse gas emission allowance trading within the Community in order to promote reductions of greenhouse gas emissions in a cost-effective and economically efficient manner. |
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(1)

Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community (4) established a scheme for greenhouse gas emission allowance trading within the Community in order to promote reductions of greenhouse gas emissions in a cost-effective and economically efficient manner.

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| (2) | The ultimate objective of the United Nations Framework Convention on Climate Change (UNFCCC), which was approved on behalf of the European Community by Council Decision 94/69/EC (5), is to stabilise greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. |
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(2)

The ultimate objective of the United Nations Framework Convention on Climate Change (UNFCCC), which was approved on behalf of the European Community by Council Decision 94/69/EC (5), is to stabilise greenhouse gas concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system.

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| (3) | The European Council meeting in Brussels on 8 and 9 March 2007 underlined the vital importance of achieving the strategic objective of limiting the global average temperature increase to not more than 2 °C above pre-industrial levels. The latest scientific findings reported by the Intergovernmental Panel on Climate Change (IPCC) in its Fourth Assessment Report demonstrate even more clearly that the negative impacts of climate change are increasingly posing a serious risk to ecosystems, food production and the attainment of sustainable development and of the Millennium Development Goals, as well as to human health and security. Keeping the 2 °C objective within reach requires stabilisation of the concentration of greenhouse gases in the atmosphere in line with about 450 ppmv CO2 equivalent, which requires global greenhouse gas emissions to peak within the next 10 to 15 years and substantial global emission reductions to at least 50 % below 1990 levels by 2050. |
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(3)

The European Council meeting in Brussels on 8 and 9 March 2007 underlined the vital importance of achieving the strategic objective of limiting the global average temperature increase to not more than 2 °C above pre-industrial levels. The latest scientific findings reported by the Intergovernmental Panel on Climate Change (IPCC) in its Fourth Assessment Report demonstrate even more clearly that the negative impacts of climate change are increasingly posing a serious risk to ecosystems, food production and the attainment of sustainable development and of the Millennium Development Goals, as well as to human health and security. Keeping the 2 °C objective within reach requires stabilisation of the concentration of greenhouse gases in the atmosphere in line with about 450 ppmv CO2 equivalent, which requires global greenhouse gas emissions to peak within the next 10 to 15 years and substantial global emission reductions to at least 50 % below 1990 levels by 2050.

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| (4) | The European Council emphasised that the European Union is committed to transforming Europe into a highly energy-efficient and low greenhouse-gas-emitting economy and, until a global and comprehensive post-2012 agreement is concluded, made a firm independent commitment for the EU to reduce its greenhouse gas emissions to at least 20 % below 1990 levels by 2020. The limitation of greenhouse gas emissions from aviation is an essential contribution in line with this commitment. |
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(4)

The European Council emphasised that the European Union is committed to transforming Europe into a highly energy-efficient and low greenhouse-gas-emitting economy and, until a global and comprehensive post-2012 agreement is concluded, made a firm independent commitment for the EU to reduce its greenhouse gas emissions to at least 20 % below 1990 levels by 2020. The limitation of greenhouse gas emissions from aviation is an essential contribution in line with this commitment.

| (5) | The European Council emphasised that the EU is committed to a global and comprehensive agreement for reductions in greenhouse gas emissions beyond 2012, providing an effective, efficient and equitable response on the scale required to face climate change challenges. It endorsed a 30 % reduction in the EU's greenhouse gas emissions below 1990 levels by 2020 as its contribution to a global and comprehensive agreement for the period beyond 2012, provided that other developed countries commit themselves to comparable emission reductions and economically more advanced developing countries to contributing adequately according to their responsibilities and respective capabilities. The EU is continuing to take the lead in the negotiation of an ambitious international agreement that will achieve the objective of limiting the global temperature increase to 2 °C and is encouraged by the progress made towards this objective at the 13th Conference of the Parties to the UNFCCC in Bali in December 2007. The EU will seek to ensure that such a global agreement includes measures to reduce greenhouse gas emissions from aviation and, in this event, the Commission should consider which amendments to this Directive as it applies to aircraft operators are necessary. |
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(5)

The European Council emphasised that the EU is committed to a global and comprehensive agreement for reductions in greenhouse gas emissions beyond 2012, providing an effective, efficient and equitable response on the scale required to face climate change challenges. It endorsed a 30 % reduction in the EU's greenhouse gas emissions below 1990 levels by 2020 as its contribution to a global and comprehensive agreement for the period beyond 2012, provided that other developed countries commit themselves to comparable emission reductions and economically more advanced developing countries to contributing adequately according to their responsibilities and respective capabilities. The EU is continuing to take the lead in the negotiation of an ambitious international agreement that will achieve the objective of limiting the global temperature increase to 2 °C and is encouraged by the progress made towards this objective at the 13th Conference of the Parties to the UNFCCC in Bali in December 2007. The EU will seek to ensure that such a global agreement includes measures to reduce greenhouse gas emissions from aviation and, in this event, the Commission should consider which amendments to this Directive as it applies to aircraft operators are necessary.

| (6) | The UNFCCC requires all parties to formulate and implement national and, where appropriate, regional programmes containing measures to mitigate climate change. |
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(6)

The UNFCCC requires all parties to formulate and implement national and, where appropriate, regional programmes containing measures to mitigate climate change.

| (7) | The Kyoto Protocol to the UNFCCC, which was approved on behalf of the European Community by Council Decision 2002/358/EC (6), requires developed countries to pursue the limitation or reduction of emissions of greenhouse gases not controlled by the Montreal Protocol from aviation, working through the International Civil Aviation Organization (ICAO). |
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(7)

The Kyoto Protocol to the UNFCCC, which was approved on behalf of the European Community by Council Decision 2002/358/EC (6), requires developed countries to pursue the limitation or reduction of emissions of greenhouse gases not controlled by the Montreal Protocol from aviation, working through the International Civil Aviation Organization (ICAO).

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| (8) | While the Community is not a Contracting Party to the 1944 Chicago Convention on International Civil Aviation (‘the Chicago Convention’), all Member States are Contracting Parties to that Convention and members of the ICAO. Member States continue to support work with other States in the ICAO on the development of measures, including market-based instruments, to address the climate change impacts of aviation. At the sixth meeting of the ICAO Committee on Aviation Environmental Protection in 2004, it was agreed that an aviation-specific emissions trading system based on a new legal instrument under ICAO auspices seemed sufficiently unattractive that it should not then be pursued further. Consequently, Resolution A35-5 of the ICAO's 35th Assembly held in September 2004 did not propose a new legal instrument but instead endorsed open emissions trading and the possibility for States to incorporate emissions from international aviation into their emissions trading schemes. Appendix L to Resolution A36-22 of the ICAO's 36th Assembly held in September 2007 urges Contracting States not to implement an emissions trading system on other Contracting States' aircraft operators except on the basis of mutual agreement between those States. Recalling that the Chicago Convention recognises expressly the right of each Contracting Party to apply on a non-discriminatory basis its own air laws and regulations to the aircraft of all States, the Member States of the European Community and fifteen other European States placed a reservation on this resolution and reserved the right under the Chicago Convention to enact and apply market-based measures on a non-discriminatory basis to all aircraft operators of all States providing services to, from or within their territory. |
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(8)

While the Community is not a Contracting Party to the 1944 Chicago Convention on International Civil Aviation (‘the Chicago Convention’), all Member States are Contracting Parties to that Convention and members of the ICAO. Member States continue to support work with other States in the ICAO on the development of measures, including market-based instruments, to address the climate change impacts of aviation. At the sixth meeting of the ICAO Committee on Aviation Environmental Protection in 2004, it was agreed that an aviation-specific emissions trading system based on a new legal instrument under ICAO auspices seemed sufficiently unattractive that it should not then be pursued further. Consequently, Resolution A35-5 of the ICAO's 35th Assembly held in September 2004 did not propose a new legal instrument but instead endorsed open emissions trading and the possibility for States to incorporate emissions from international aviation into their emissions trading schemes. Appendix L to Resolution A36-22 of the ICAO's 36th Assembly held in September 2007 urges Contracting States not to implement an emissions trading system on other Contracting States' aircraft operators except on the basis of mutual agreement between those States. Recalling that the Chicago Convention recognises expressly the right of each Contracting Party to apply on a non-discriminatory basis its own air laws and regulations to the aircraft of all States, the Member States of the European Community and fifteen other European States placed a reservation on this resolution and reserved the right under the Chicago Convention to enact and apply market-based measures on a non-discriminatory basis to all aircraft operators of all States providing services to, from or within their territory.

| (9) | The Sixth Community Environment Action Programme established by Decision No 1600/2002/EC of the European Parliament and of the Council (7) provided for the Community to identify and undertake specific actions to reduce greenhouse gas emissions from aviation if no such action were agreed within the ICAO by 2002. In its conclusions of October 2002, December 2003 and October 2004, the Council has repeatedly called on the Commission to propose action to reduce the climate change impact of international air transport. |
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(9)

The Sixth Community Environment Action Programme established by Decision No 1600/2002/EC of the European Parliament and of the Council (7) provided for the Community to identify and undertake specific actions to reduce greenhouse gas emissions from aviation if no such action were agreed within the ICAO by 2002. In its conclusions of October 2002, December 2003 and October 2004, the Council has repeatedly called on the Commission to propose action to reduce the climate change impact of international air transport.

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| (10) | Policies and measures should be implemented at Member State and Community level across all sectors of the Community economy in order to generate the substantial reductions needed. If the climate change impact of the aviation sector continues to grow at the current rate, it would significantly undermine reductions made by other sectors to combat climate change. |
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(10)

Policies and measures should be implemented at Member State and Community level across all sectors of the Community economy in order to generate the substantial reductions needed. If the climate change impact of the aviation sector continues to grow at the current rate, it would significantly undermine reductions made by other sectors to combat climate change.

| (11) | In its Communication of 27 September 2005 to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions entitled ‘Reducing the Climate Change Impact of Aviation’, the Commission outlined a strategy for reducing the climate impact of aviation. As part of a comprehensive package of measures, the strategy proposed the inclusion of aviation in the Community scheme for greenhouse gas emission allowance trading and provided for the creation of a multi-stakeholder working group on aviation as part of the second phase of the European Climate Change Programme to consider ways of including aviation in the Community scheme. In its Conclusions of 2 December 2005, the Council recognised that, from an economic and environmental point of view, the inclusion of the aviation sector in the Community scheme seemed to be the best way forward and called on the Commission to bring forward a legislative proposal by the end of 2006. In its resolution of 4 July 2006 on reducing the climate change impact of aviation (8), the European Parliament recognised that emissions trading has the potential to play a role as part of a comprehensive package of measures to address the climate impact of aviation, provided that it is appropriately designed. |
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(11)

In its Communication of 27 September 2005 to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions entitled ‘Reducing the Climate Change Impact of Aviation’, the Commission outlined a strategy for reducing the climate impact of aviation. As part of a comprehensive package of measures, the strategy proposed the inclusion of aviation in the Community scheme for greenhouse gas emission allowance trading and provided for the creation of a multi-stakeholder working group on aviation as part of the second phase of the European Climate Change Programme to consider ways of including aviation in the Community scheme. In its Conclusions of 2 December 2005, the Council recognised that, from an economic and environmental point of view, the inclusion of the aviation sector in the Community scheme seemed to be the best way forward and called on the Commission to bring forward a legislative proposal by the end of 2006. In its resolution of 4 July 2006 on reducing the climate change impact of aviation (8), the European Parliament recognised that emissions trading has the potential to play a role as part of a comprehensive package of measures to address the climate impact of aviation, provided that it is appropriately designed.

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| (12) | The objective of the amendments made to Directive 2003/87/EC by this Directive is to reduce the climate change impact attributable to aviation by including emissions from aviation activities in the Community scheme. |
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(12)

The objective of the amendments made to Directive 2003/87/EC by this Directive is to reduce the climate change impact attributable to aviation by including emissions from aviation activities in the Community scheme.

| (13) | Aircraft operators have the most direct control over the type of aircraft in operation and the way in which they are flown and should therefore be responsible for complying with the obligations imposed by this Directive, including the obligation to prepare a monitoring plan and to monitor and report emissions in accordance with that plan. An aircraft operator may be identified by the use of an ICAO designator or any other recognised designator used in the identification of the flight. If the identity of the aircraft operator is not known, the owner of the aircraft should be regarded as the aircraft operator unless it proves which other person was the aircraft operator. |
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(13)

Aircraft operators have the most direct control over the type of aircraft in operation and the way in which they are flown and should therefore be responsible for complying with the obligations imposed by this Directive, including the obligation to prepare a monitoring plan and to monitor and report emissions in accordance with that plan. An aircraft operator may be identified by the use of an ICAO designator or any other recognised designator used in the identification of the flight. If the identity of the aircraft operator is not known, the owner of the aircraft should be regarded as the aircraft operator unless it proves which other person was the aircraft operator.

| (14) | From 2012, emissions from all flights arriving at and departing from Community aerodromes should be included. The Community scheme may thus serve as a model for the use of emissions trading worldwide. If a third country adopts measures for reducing the climate impact of flights to the Community the Commission should consider the options available in order to provide for optimal interaction between the Community scheme and that country's measures, after consulting with that country. |
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(14)

From 2012, emissions from all flights arriving at and departing from Community aerodromes should be included. The Community scheme may thus serve as a model for the use of emissions trading worldwide. If a third country adopts measures for reducing the climate impact of flights to the Community the Commission should consider the options available in order to provide for optimal interaction between the Community scheme and that country's measures, after consulting with that country.

| (15) | In line with the principle of better regulation, certain flights should be exempt from the scheme. To further avoid disproportionate administrative burdens, commercial air transport operators operating, for three consecutive four-month periods, fewer than 243 flights per period should be exempt from the scheme. This would benefit airlines operating limited services within the scope of the Community scheme, including airlines from developing countries. |
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(15)

In line with the principle of better regulation, certain flights should be exempt from the scheme. To further avoid disproportionate administrative burdens, commercial air transport operators operating, for three consecutive four-month periods, fewer than 243 flights per period should be exempt from the scheme. This would benefit airlines operating limited services within the scope of the Community scheme, including airlines from developing countries.

| (16) | Aviation has an impact on the global climate through releases of carbon dioxide, nitrogen oxides, water vapour and sulphate and soot particles. The IPCC has estimated that the total impact of aviation is currently two to four times higher than the effect of its past carbon dioxide emissions alone. Recent Community research indicates that the total impact of aviation could be around two times higher than the impact of carbon dioxide alone. However, none of these estimates takes into account the highly uncertain cirrus cloud effects. In accordance with Article 174(2) of the Treaty, Community environment policy is to be based on the precautionary principle. Pending scientific progress, all impacts of aviation should be addressed to the extent possible. Emissions of nitrogen oxides will be addressed in other legislation to be proposed by the Commission in 2008. |
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(16)

Aviation has an impact on the global climate through releases of carbon dioxide, nitrogen oxides, water vapour and sulphate and soot particles. The IPCC has estimated that the total impact of aviation is currently two to four times higher than the effect of its past carbon dioxide emissions alone. Recent Community research indicates that the total impact of aviation could be around two times higher than the impact of carbon dioxide alone. However, none of these estimates takes into account the highly uncertain cirrus cloud effects. In accordance with Article 174(2) of the Treaty, Community environment policy is to be based on the precautionary principle. Pending scientific progress, all impacts of aviation should be addressed to the extent possible. Emissions of nitrogen oxides will be addressed in other legislation to be proposed by the Commission in 2008.

| (17) | In order to avoid distortions of competition, a harmonised allocation methodology should be specified for determining the total quantity of allowances to be issued and for distributing allowances to aircraft operators. A proportion of allowances will be allocated by auction in accordance with rules to be developed by the Commission. A special reserve of allowances should be set aside to ensure access to the market for new aircraft operators and to assist aircraft operators which increase sharply the number of tonne-kilometres that they perform. Aircraft operators that cease operations should continue to be issued with allowances until the end of the period for which free allowances have already been allocated. |
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(17)

In order to avoid distortions of competition, a harmonised allocation methodology should be specified for determining the total quantity of allowances to be issued and for distributing allowances to aircraft operators. A proportion of allowances will be allocated by auction in accordance with rules to be developed by the Commission. A special reserve of allowances should be set aside to ensure access to the market for new aircraft operators and to assist aircraft operators which increase sharply the number of tonne-kilometres that they perform. Aircraft operators that cease operations should continue to be issued with allowances until the end of the period for which free allowances have already been allocated.

| (18) | Full harmonisation of the proportion of allowances issued free of charge to all aircraft operators participating in the scheme is appropriate in order to ensure a level playing field for aircraft operators, given that each aircraft operator will be regulated by a single Member State in respect of all their operations to, from and within the EU and by the non-discrimination provisions of bilateral air service agreements with third countries. |
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(18)

Full harmonisation of the proportion of allowances issued free of charge to all aircraft operators participating in the scheme is appropriate in order to ensure a level playing field for aircraft operators, given that each aircraft operator will be regulated by a single Member State in respect of all their operations to, from and within the EU and by the non-discrimination provisions of bilateral air service agreements with third countries.

| (19) | Aviation contributes to the overall climate change impact of human activities and the environmental impact of greenhouse gas emissions from aircraft can be mitigated through measures to tackle climate change in the EU and third countries, and to fund research and development for mitigation and adaptation. Decisions on national public expenditure are a matter for Member States, in line with the principle of subsidiarity. Without prejudice to that position, revenues generated from the auctioning of allowances, or an equivalent amount where required by overriding budgetary principles of the Member States, such as unity and universality, should be used to reduce greenhouse gas emissions, to adapt to the impacts of climate change in the EU and third countries, to fund research and development for mitigation and adaptation and to cover the cost of administering the scheme. This could include measures to encourage environmentally-friendly transport. The proceeds of auctioning should in particular be used to fund contributions to the Global Energy Efficiency and Renewable Energy Fund, and measures to avoid deforestation and facilitate adaptation in developing countries. The provisions of this Directive relating to the use of revenues should not prejudge any decision on the use to be made of revenues generated from the auctioning of allowances in the broader context of the general review of Directive 2003/87/EC. |
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(19)

Aviation contributes to the overall climate change impact of human activities and the environmental impact of greenhouse gas emissions from aircraft can be mitigated through measures to tackle climate change in the EU and third countries, and to fund research and development for mitigation and adaptation. Decisions on national public expenditure are a matter for Member States, in line with the principle of subsidiarity. Without prejudice to that position, revenues generated from the auctioning of allowances, or an equivalent amount where required by overriding budgetary principles of the Member States, such as unity and universality, should be used to reduce greenhouse gas emissions, to adapt to the impacts of climate change in the EU and third countries, to fund research and development for mitigation and adaptation and to cover the cost of administering the scheme. This could include measures to encourage environmentally-friendly transport. The proceeds of auctioning should in particular be used to fund contributions to the Global Energy Efficiency and Renewable Energy Fund, and measures to avoid deforestation and facilitate adaptation in developing countries. The provisions of this Directive relating to the use of revenues should not prejudge any decision on the use to be made of revenues generated from the auctioning of allowances in the broader context of the general review of Directive 2003/87/EC.

| (20) | Provisions for the use of funds from the auctioning should be notified to the Commission. Such notification does not release Member States from the obligation laid down in Article 88(3) of the Treaty to notify certain national measures. This Directive should be without prejudice to the outcome of any future State aid procedures that may be undertaken in accordance with Articles 87 and 88 of the Treaty. |
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(20)

Provisions for the use of funds from the auctioning should be notified to the Commission. Such notification does not release Member States from the obligation laid down in Article 88(3) of the Treaty to notify certain national measures. This Directive should be without prejudice to the outcome of any future State aid procedures that may be undertaken in accordance with Articles 87 and 88 of the Treaty.

| (21) | To increase the cost-effectiveness of the scheme, aircraft operators should be able to use certified emission reductions (‘CERs’) and emission reduction units (‘ERUs’) from project activities to meet obligations to surrender allowances up to a harmonised limit. The use of CERs and ERUs should be consistent with the criteria for acceptance for use in the trading scheme set out in this Directive. |
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(21)

To increase the cost-effectiveness of the scheme, aircraft operators should be able to use certified emission reductions (‘CERs’) and emission reduction units (‘ERUs’) from project activities to meet obligations to surrender allowances up to a harmonised limit. The use of CERs and ERUs should be consistent with the criteria for acceptance for use in the trading scheme set out in this Directive.

| (22) | In order to reduce the administrative burden on aircraft operators, one Member State should be responsible for each aircraft operator. Member States should be required to ensure that aircraft operators which were issued with an operating licence in that State, or aircraft operators without an operating licence or from third countries whose emissions in a base year are mostly attributable to that Member State, comply with the requirements of this Directive. In the event that an aircraft operator fails to comply with the requirements of this Directive and other enforcement measures by the administering Member State have failed to ensure compliance, Member States should act in solidarity. The administering Member State should therefore be able to request the Commission to decide on the imposition of an operating ban at Community level on the aircraft operator concerned, as a last resort. |
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(22)

In order to reduce the administrative burden on aircraft operators, one Member State should be responsible for each aircraft operator. Member States should be required to ensure that aircraft operators which were issued with an operating licence in that State, or aircraft operators without an operating licence or from third countries whose emissions in a base year are mostly attributable to that Member State, comply with the requirements of this Directive. In the event that an aircraft operator fails to comply with the requirements of this Directive and other enforcement measures by the administering Member State have failed to ensure compliance, Member States should act in solidarity. The administering Member State should therefore be able to request the Commission to decide on the imposition of an operating ban at Community level on the aircraft operator concerned, as a last resort.

| (23) | To maintain the integrity of the accounting system for the Community scheme in view of the fact that emissions from international aviation are not integrated into Member States' commitments under the Kyoto Protocol, allowances allocated to the aviation sector should only be used to meet the obligations placed on aircraft operators to surrender allowances under this Directive. |
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(23)

To maintain the integrity of the accounting system for the Community scheme in view of the fact that emissions from international aviation are not integrated into Member States' commitments under the Kyoto Protocol, allowances allocated to the aviation sector should only be used to meet the obligations placed on aircraft operators to surrender allowances under this Directive.

| (24) | To safeguard the environmental integrity of the scheme, units surrendered by aircraft operators should only count towards greenhouse gas reduction targets that take these emissions into account. |
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(24)

To safeguard the environmental integrity of the scheme, units surrendered by aircraft operators should only count towards greenhouse gas reduction targets that take these emissions into account.

| (25) | The European Organisation for the Safety of Air Navigation (Eurocontrol) may possess information which could assist Member States or the Commission in discharging their obligations imposed by this Directive. |
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(25)

The European Organisation for the Safety of Air Navigation (Eurocontrol) may possess information which could assist Member States or the Commission in discharging their obligations imposed by this Directive.

| (26) | The provisions of the Community scheme relating to monitoring, reporting and verifying emissions and to penalties applicable to operators should also apply to aircraft operators. |
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(26)

The provisions of the Community scheme relating to monitoring, reporting and verifying emissions and to penalties applicable to operators should also apply to aircraft operators.

| (27) | The Commission should review the functioning of Directive 2003/87/EC in relation to aviation activities in the light of experience of its application and should then report to the European Parliament and the Council. |
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(27)

The Commission should review the functioning of Directive 2003/87/EC in relation to aviation activities in the light of experience of its application and should then report to the European Parliament and the Council.

| (28) | The review of the functioning of Directive 2003/87/EC in relation to aviation activities should consider the structural dependence on aviation of countries which do not have adequate and comparable alternative modes of transport and which are therefore highly dependent on air transport and in which the tourism sector provides a high contribution to those countries' GDP. Special consideration should be given to mitigating or even eliminating any accessibility and competitiveness problems arising for outermost regions, as specified in Article 299(2) of the Treaty, and problems for public service obligations in connection with the implementation of this Directive. |
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(28)

The review of the functioning of Directive 2003/87/EC in relation to aviation activities should consider the structural dependence on aviation of countries which do not have adequate and comparable alternative modes of transport and which are therefore highly dependent on air transport and in which the tourism sector provides a high contribution to those countries' GDP. Special consideration should be given to mitigating or even eliminating any accessibility and competitiveness problems arising for outermost regions, as specified in Article 299(2) of the Treaty, and problems for public service obligations in connection with the implementation of this Directive.

| (29) | The Ministerial Statement on Gibraltar Airport, agreed in Cordoba on 18 September 2006, during the first Ministerial meeting of the Forum of Dialogue on Gibraltar, will replace the Joint Declaration on the Airport made in London on 2 December 1987, and full compliance with it will be deemed to constitute compliance with the 1987 Declaration. |
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(29)

The Ministerial Statement on Gibraltar Airport, agreed in Cordoba on 18 September 2006, during the first Ministerial meeting of the Forum of Dialogue on Gibraltar, will replace the Joint Declaration on the Airport made in London on 2 December 1987, and full compliance with it will be deemed to constitute compliance with the 1987 Declaration.

| (30) | The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (9). |
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(30)

The measures necessary for the implementation of this Directive should be adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (9).

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| (31) | In particular, the Commission should be empowered to adopt measures for the auctioning of allowances not required to be issued for free; to adopt detailed rules on the operation of the special reserve for certain aircraft operators and on the procedures in relation to requests for the Commission to decide on the imposition of an operating ban on an aircraft operator; and to amend the aviation activities listed in Annex I where a third country introduces measures to reduce the climate change impact of aviation. Since those measures are of general scope and are designed to amend non-essential elements of this Directive, inter alia by supplementing this Directive with new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC. |
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(31)

In particular, the Commission should be empowered to adopt measures for the auctioning of allowances not required to be issued for free; to adopt detailed rules on the operation of the special reserve for certain aircraft operators and on the procedures in relation to requests for the Commission to decide on the imposition of an operating ban on an aircraft operator; and to amend the aviation activities listed in Annex I where a third country introduces measures to reduce the climate change impact of aviation. Since those measures are of general scope and are designed to amend non-essential elements of this Directive, inter alia by supplementing this Directive with new non-essential elements, they must be adopted in accordance with the regulatory procedure with scrutiny provided for in Article 5a of Decision 1999/468/EC.

inter alia

| (32) | Since the objective of this Directive cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the proposed action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective. |
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(32)

Since the objective of this Directive cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the proposed action, be better achieved at Community level, the Community may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

| (33) | In accordance with point 34 of the Interinstitutional Agreement on better law-making (10), Member States are encouraged to draw up, for themselves and in the interest of the Community, their own tables illustrating, as far as possible, the correlation between the Directive and the transposition measures, and to make them public. |
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(33)

In accordance with point 34 of the Interinstitutional Agreement on better law-making (10), Member States are encouraged to draw up, for themselves and in the interest of the Community, their own tables illustrating, as far as possible, the correlation between the Directive and the transposition measures, and to make them public.

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| (34) | Directive 2003/87/EC should therefore be amended accordingly, |
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(34)

Directive 2003/87/EC should therefore be amended accordingly,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Amendments to Directive 2003/87/EC

Directive 2003/87/EC is hereby amended as follows:

| 1. | the following title shall be inserted before Article 1: |
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1.

the following title shall be inserted before Article 1:

| 2. | the following paragraph shall be added to Article 2:
  ‘3.   The application of this Directive to the airport of Gibraltar is understood to be without prejudice to the respective legal positions of the Kingdom of Spain and the United Kingdom with regard to the dispute over sovereignty over the territory in which the airport is situated.’; |
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2.

the following paragraph shall be added to Article 2:

‘3.   The application of this Directive to the airport of Gibraltar is understood to be without prejudice to the respective legal positions of the Kingdom of Spain and the United Kingdom with regard to the dispute over sovereignty over the territory in which the airport is situated.’;

| 3. | Article 3 shall be amended as follows:






  (a) | point (b) shall be replaced by the following:






  ‘(b) | “emissions” means the release of greenhouse gases into the atmosphere from sources in an installation or the release from an aircraft performing an aviation activity listed in Annex I of the gases specified in respect of that activity;’; |
| --- | --- | --- | --- |

3.

Article 3 shall be amended as follows:

(a)

point (b) shall be replaced by the following:

‘(b)

“emissions” means the release of greenhouse gases into the atmosphere from sources in an installation or the release from an aircraft performing an aviation activity listed in Annex I of the gases specified in respect of that activity;’;

| (b) | the following points shall be added:






  ‘(o) | “aircraft operator” means the person who operates an aircraft at the time it performs an aviation activity listed in Annex I or, where that person is not known or is not identified by the owner of the aircraft, the owner of the aircraft; |
| --- | --- | --- |

(b)

the following points shall be added:

‘(o)

“aircraft operator” means the person who operates an aircraft at the time it performs an aviation activity listed in Annex I or, where that person is not known or is not identified by the owner of the aircraft, the owner of the aircraft;

| (p) | “commercial air transport operator” means an operator that, for remuneration, provides scheduled or non-scheduled air transport services to the public for the carriage of passengers, freight or mail; |
| --- | --- |

(p)

“commercial air transport operator” means an operator that, for remuneration, provides scheduled or non-scheduled air transport services to the public for the carriage of passengers, freight or mail;

| (q) | “administering Member State” means the Member State responsible for administering the Community scheme in respect of an aircraft operator in accordance with Article 18a; |
| --- | --- |

(q)

“administering Member State” means the Member State responsible for administering the Community scheme in respect of an aircraft operator in accordance with Article 18a;

| (r) | “attributed aviation emissions” means emissions from all flights falling within the aviation activities listed in Annex I which depart from an aerodrome situated in the territory of a Member State and those which arrive in such an aerodrome from a third country; |
| --- | --- |

(r)

“attributed aviation emissions” means emissions from all flights falling within the aviation activities listed in Annex I which depart from an aerodrome situated in the territory of a Member State and those which arrive in such an aerodrome from a third country;

| (s) | “historical aviation emissions” means the mean average of the annual emissions in the calendar years 2004, 2005 and 2006 from aircraft performing an aviation activity listed in Annex I.’; |
| --- | --- |

(s)

“historical aviation emissions” means the mean average of the annual emissions in the calendar years 2004, 2005 and 2006 from aircraft performing an aviation activity listed in Annex I.’;

| 4. | the following Chapter shall be inserted after Article 3:
  ‘CHAPTER II
  Aviation
  Article 3a
  Scope
  The provisions of this Chapter shall apply to the allocation and issue of allowances in respect of aviation activities listed in Annex I.
  Article 3b
  Aviation activities
  By ... (11), the Commission shall, in accordance with the regulatory procedure referred to in Article 23(2), develop guidelines on the detailed interpretation of the aviation activities in Annex I, in particular flights related to search and rescue, fire-fighting flights, humanitarian flights, emergency medical service flights, and flights performed by commercial air transport operators operating, for three consecutive four-month periods, fewer than 243 flights per period.
  Article 3c
  Total quantity of allowances for aviation
  1.   For the period from 1 January 2012 to 31 December 2012, the total quantity of allowances to be allocated to aircraft operators shall be equivalent to 100 % of the historical aviation emissions.
  2.   For the period referred to in Article 11(2) beginning on 1 January 2013, and, in the absence of any amendments following the review referred to in Article 30(4), for each subsequent period, the total quantity of allowances to be allocated to aircraft operators shall be equivalent to 100 % of the historical aviation emissions multiplied by the number of years in the period.
  3.   The Commission shall review the total quantity of allowances to be allocated to aircraft operators in accordance with Article 30(4).
  4.   By ... (11), the Commission shall decide on the historical aviation emissions, based on best available data, including estimates based on actual traffic information. That decision shall be considered within the Committee referred to in Article 23(1).
  Article 3d
  Method of allocation of allowances for aviation through auctioning
  1.   In the period referred to in Article 3c(1), 10 % of allowances shall be auctioned.
  2.   For subsequent periods, the percentage to be auctioned referred to in paragraph 1 may be increased as part of the general review of this Directive.
  3.   A Regulation shall be adopted containing detailed provisions for the auctioning by Member States of allowances not required to be issued free of charge in accordance with paragraphs 1 and 2 of this Article or Article 3f(8). The number of allowances to be auctioned in each period by each Member State shall be proportionate to its share of the total attributed aviation emissions for all Member States for the reference year reported pursuant to Article 14(3) and verified pursuant to Article 15. For the period referred to in Article 3c(1), the reference year shall be 2010 and for each subsequent period referred to in Article 3c the reference year shall be the calendar year ending 24 months before the start of the period to which the auction relates.
  That Regulation, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 23(3).
  4.   It shall be for Member States to determine the use to be made of revenues generated from the auctioning of allowances. Those revenues should be used to tackle climate change in the EU and third countries and to cover the costs of the administering Member State in relation to this Directive.
  5.   Information provided to the Commission pursuant to this Directive does not free Member States from the notification obligation laid down in Article 88(3) of the Treaty.
  Article 3e
  Allocation and issue of allowances to aircraft operators
  1.   For each period referred to in Article 3c, each aircraft operator may apply for an allocation of allowances that are to be allocated free of charge. An application may be made by submitting to the competent authority in the administering Member State verified tonne-kilometre data for the aviation activities listed in Annex I performed by that aircraft operator for the monitoring year. For the purposes of this Article, the monitoring year shall be the calendar year ending 24 months before the start of the period to which it relates in accordance with Annexes IV and V or, in relation to the period referred to in Article 3c(1), 2010. Any application shall be made at least 21 months before the start of the period to which it relates or, in relation to the period referred to in Article 3c(1), by 31 March 2011.
  2.   At least eighteen months before the start of the period to which the application relates or, in relation to the period referred to in Article 3c(1), by 30 June 2011, Member States shall submit applications received under paragraph 1 to the Commission.
  3.   At least fifteen months before the start of each period referred to in Article 3c(2) or, in relation to the period referred to in Article 3c(1), by 30 September 2011, the Commission shall calculate and adopt a decision setting out:






  (a) | the total quantity of allowances to be allocated for that period in accordance with Article 3c; |
| --- | --- | --- |

4.

the following Chapter shall be inserted after Article 3:

‘CHAPTER II

Aviation

Article 3a

Scope

The provisions of this Chapter shall apply to the allocation and issue of allowances in respect of aviation activities listed in Annex I.

Article 3b

Aviation activities

By ... (11), the Commission shall, in accordance with the regulatory procedure referred to in Article 23(2), develop guidelines on the detailed interpretation of the aviation activities in Annex I, in particular flights related to search and rescue, fire-fighting flights, humanitarian flights, emergency medical service flights, and flights performed by commercial air transport operators operating, for three consecutive four-month periods, fewer than 243 flights per period.

11

Article 3c

Total quantity of allowances for aviation

1.   For the period from 1 January 2012 to 31 December 2012, the total quantity of allowances to be allocated to aircraft operators shall be equivalent to 100 % of the historical aviation emissions.

2.   For the period referred to in Article 11(2) beginning on 1 January 2013, and, in the absence of any amendments following the review referred to in Article 30(4), for each subsequent period, the total quantity of allowances to be allocated to aircraft operators shall be equivalent to 100 % of the historical aviation emissions multiplied by the number of years in the period.

3.   The Commission shall review the total quantity of allowances to be allocated to aircraft operators in accordance with Article 30(4).

4.   By ... (11), the Commission shall decide on the historical aviation emissions, based on best available data, including estimates based on actual traffic information. That decision shall be considered within the Committee referred to in Article 23(1).

11

Article 3d

Method of allocation of allowances for aviation through auctioning

1.   In the period referred to in Article 3c(1), 10 % of allowances shall be auctioned.

2.   For subsequent periods, the percentage to be auctioned referred to in paragraph 1 may be increased as part of the general review of this Directive.

3.   A Regulation shall be adopted containing detailed provisions for the auctioning by Member States of allowances not required to be issued free of charge in accordance with paragraphs 1 and 2 of this Article or Article 3f(8). The number of allowances to be auctioned in each period by each Member State shall be proportionate to its share of the total attributed aviation emissions for all Member States for the reference year reported pursuant to Article 14(3) and verified pursuant to Article 15. For the period referred to in Article 3c(1), the reference year shall be 2010 and for each subsequent period referred to in Article 3c the reference year shall be the calendar year ending 24 months before the start of the period to which the auction relates.

That Regulation, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 23(3).

4.   It shall be for Member States to determine the use to be made of revenues generated from the auctioning of allowances. Those revenues should be used to tackle climate change in the EU and third countries and to cover the costs of the administering Member State in relation to this Directive.

5.   Information provided to the Commission pursuant to this Directive does not free Member States from the notification obligation laid down in Article 88(3) of the Treaty.

Article 3e

Allocation and issue of allowances to aircraft operators

1.   For each period referred to in Article 3c, each aircraft operator may apply for an allocation of allowances that are to be allocated free of charge. An application may be made by submitting to the competent authority in the administering Member State verified tonne-kilometre data for the aviation activities listed in Annex I performed by that aircraft operator for the monitoring year. For the purposes of this Article, the monitoring year shall be the calendar year ending 24 months before the start of the period to which it relates in accordance with Annexes IV and V or, in relation to the period referred to in Article 3c(1), 2010. Any application shall be made at least 21 months before the start of the period to which it relates or, in relation to the period referred to in Article 3c(1), by 31 March 2011.

2.   At least eighteen months before the start of the period to which the application relates or, in relation to the period referred to in Article 3c(1), by 30 June 2011, Member States shall submit applications received under paragraph 1 to the Commission.

3.   At least fifteen months before the start of each period referred to in Article 3c(2) or, in relation to the period referred to in Article 3c(1), by 30 September 2011, the Commission shall calculate and adopt a decision setting out:

(a)

the total quantity of allowances to be allocated for that period in accordance with Article 3c;

| (b) | the number of allowances to be auctioned in that period in accordance with Article 3d; |
| --- | --- |

(b)

the number of allowances to be auctioned in that period in accordance with Article 3d;

| (c) | the number of allowances in the special reserve for aircraft operators in that period in accordance with Article 3f(1); |
| --- | --- |

(c)

the number of allowances in the special reserve for aircraft operators in that period in accordance with Article 3f(1);

| (d) | the number of allowances to be allocated free of charge in that period by subtracting the number of allowances referred to in points (b) and (c) from the total quantity of allowances decided upon under point (a); and |
| --- | --- |

(d)

the number of allowances to be allocated free of charge in that period by subtracting the number of allowances referred to in points (b) and (c) from the total quantity of allowances decided upon under point (a); and

| (e) | the benchmark to be used to allocate allowances free of charge to aircraft operators whose applications were submitted to the Commission in accordance with paragraph 2. |
| --- | --- |

(e)

the benchmark to be used to allocate allowances free of charge to aircraft operators whose applications were submitted to the Commission in accordance with paragraph 2.

The benchmark referred to in point (e), expressed as allowances per tonne-kilometre, shall be calculated by dividing the number of allowances referred to in point (d) by the sum of the tonne-kilometre data included in applications submitted to the Commission in accordance with paragraph 2.

4.   Within three months from the date on which the Commission adopts a decision under paragraph 3, each administering Member State shall calculate and publish:

| (a) | the total allocation of allowances for the period to each aircraft operator whose application it submitted to the Commission in accordance with paragraph 2, calculated by multiplying the tonne-kilometre data included in the application by the benchmark referred to in paragraph 3(e); and |
| --- | --- |

(a)

the total allocation of allowances for the period to each aircraft operator whose application it submitted to the Commission in accordance with paragraph 2, calculated by multiplying the tonne-kilometre data included in the application by the benchmark referred to in paragraph 3(e); and

| (b) | the allocation of allowances to each aircraft operator for each year, which shall be determined by dividing its total allocation of allowances for the period calculated under point (a) by the number of years in the period for which that aircraft operator is performing an aviation activity listed in Annex I. |
| --- | --- |

(b)

the allocation of allowances to each aircraft operator for each year, which shall be determined by dividing its total allocation of allowances for the period calculated under point (a) by the number of years in the period for which that aircraft operator is performing an aviation activity listed in Annex I.

5.   By 28 February 2012 and by 28 February of each subsequent year, the competent authority of the administering Member State shall issue to each aircraft operator the number of allowances allocated to that aircraft operator for that year under this Article or Article 3f.

Article 3f

Special reserve for certain aircraft operators

1.   In each period referred to in Article 3c(2), 3 % of the total quantity of allowances to be allocated shall be set aside in a special reserve for aircraft operators:

| (a) | who start performing an aviation activity falling within Annex I after the monitoring year for which tonne-kilometre data was submitted under Article 3e(1) in respect of a period referred to in Article 3c(2); or |
| --- | --- |

(a)

who start performing an aviation activity falling within Annex I after the monitoring year for which tonne-kilometre data was submitted under Article 3e(1) in respect of a period referred to in Article 3c(2); or

| (b) | whose tonne-kilometre data increases by an average of more than 18 % annually between the monitoring year for which tonne-kilometre data was submitted under Article 3e(1) in respect of a period referred to in Article 3c(2) and the second calendar year of that period; |
| --- | --- |

(b)

whose tonne-kilometre data increases by an average of more than 18 % annually between the monitoring year for which tonne-kilometre data was submitted under Article 3e(1) in respect of a period referred to in Article 3c(2) and the second calendar year of that period;

and whose activity under point (a), or additional activity under point (b), is not in whole or in part a continuation of an aviation activity previously performed by another aircraft operator.

2.   An aircraft operator who is eligible under paragraph 1 may apply for a free allocation of allowances from the special reserve by making an application to the competent authority of its administering Member State. Any application shall be made by 30 June in the third year of the period referred to in Article 3c(2) to which it relates.

3.   An application under paragraph 2 shall:

| (a) | include verified tonne-kilometre data in accordance with Annexes IV and V for the aviation activities listed in Annex I performed by the aircraft operator in the second calendar year of the period referred to in Article 3c(2) to which the application relates; |
| --- | --- |

(a)

include verified tonne-kilometre data in accordance with Annexes IV and V for the aviation activities listed in Annex I performed by the aircraft operator in the second calendar year of the period referred to in Article 3c(2) to which the application relates;

| (b) | provide evidence that the criteria for eligibility under paragraph 1 are fulfilled; and |
| --- | --- |

(b)

provide evidence that the criteria for eligibility under paragraph 1 are fulfilled; and

| (c) | in the case of aircraft operators falling within paragraph 1(b), state:






  (i) | the percentage increase in tonne-kilometres performed by that aircraft operator between the monitoring year for which tonne-kilometre data was submitted under Article 3e(1) in respect of a period referred to in Article 3c(2) and the second calendar year of that period; |
| --- | --- | --- |

(c)

in the case of aircraft operators falling within paragraph 1(b), state:

(i)

the percentage increase in tonne-kilometres performed by that aircraft operator between the monitoring year for which tonne-kilometre data was submitted under Article 3e(1) in respect of a period referred to in Article 3c(2) and the second calendar year of that period;

| (ii) | the absolute growth in tonne-kilometres performed by that aircraft operator between the monitoring year for which tonne-kilometre data was submitted under Article 3e(1) in respect of a period referred to in Article 3c(2) and the second calendar year of that period; and |
| --- | --- |

(ii)

the absolute growth in tonne-kilometres performed by that aircraft operator between the monitoring year for which tonne-kilometre data was submitted under Article 3e(1) in respect of a period referred to in Article 3c(2) and the second calendar year of that period; and

| (iii) | the absolute growth in tonne-kilometres performed by that aircraft operator between the monitoring year for which tonne-kilometre data was submitted under Article 3e(1) in respect of a period referred to in Article 3c(2) and the second calendar year of that period which exceeds the percentage specified in paragraph 1(b). |
| --- | --- |

(iii)

the absolute growth in tonne-kilometres performed by that aircraft operator between the monitoring year for which tonne-kilometre data was submitted under Article 3e(1) in respect of a period referred to in Article 3c(2) and the second calendar year of that period which exceeds the percentage specified in paragraph 1(b).

4.   No later than six months from the deadline for making an application under paragraph 2, Member States shall submit applications received under that paragraph to the Commission.

5.   No later than twelve months from the deadline for making an application under paragraph 2, the Commission shall decide on the benchmark to be used to allocate allowances free of charge to aircraft operators whose applications were submitted to the Commission in accordance with paragraph 4.

Subject to paragraph 6, the benchmark shall be calculated by dividing the number of the allowances in the special reserve by the sum of:

| (a) | the tonne-kilometre data for aircraft operators falling within paragraph 1(a) included in applications submitted to the Commission in accordance with paragraphs 3(a) and 4; and |
| --- | --- |

(a)

the tonne-kilometre data for aircraft operators falling within paragraph 1(a) included in applications submitted to the Commission in accordance with paragraphs 3(a) and 4; and

| (b) | the absolute growth in tonne-kilometres exceeding the percentage specified in paragraph 1(b) for aircraft operators falling within paragraph 1(b) included in applications submitted to the Commission in accordance with paragraphs 3(c)(iii) and 4. |
| --- | --- |

(b)

the absolute growth in tonne-kilometres exceeding the percentage specified in paragraph 1(b) for aircraft operators falling within paragraph 1(b) included in applications submitted to the Commission in accordance with paragraphs 3(c)(iii) and 4.

6.   The benchmark referred to in paragraph 5 shall not result in an annual allocation per tonne-kilometre greater than the annual allocation per tonne-kilometre to aircraft operators under Article 3e(4).

7.   Within three months from the date on which the Commission adopts a decision under paragraph 5, each administering Member State shall calculate and publish:

| (a) | the allocation of allowances from the special reserve to each aircraft operator whose application it submitted to the Commission in accordance with paragraph 4. This allocation shall be calculated by multiplying the benchmark referred to in paragraph 5 by:






  (i) | in the case of an aircraft operator falling within paragraph 1(a), the tonne-kilometre data included in the application submitted to the Commission under paragraphs 3(a) and 4; |
| --- | --- | --- |

(a)

the allocation of allowances from the special reserve to each aircraft operator whose application it submitted to the Commission in accordance with paragraph 4. This allocation shall be calculated by multiplying the benchmark referred to in paragraph 5 by:

(i)

in the case of an aircraft operator falling within paragraph 1(a), the tonne-kilometre data included in the application submitted to the Commission under paragraphs 3(a) and 4;

| (ii) | in the case of an aircraft operator falling within paragraph 1(b), the absolute growth in tonne-kilometres exceeding the percentage specified in paragraph 1(b) included in the application submitted to the Commission under paragraphs 3(c)(iii) and 4; and |
| --- | --- |

(ii)

in the case of an aircraft operator falling within paragraph 1(b), the absolute growth in tonne-kilometres exceeding the percentage specified in paragraph 1(b) included in the application submitted to the Commission under paragraphs 3(c)(iii) and 4; and

| (b) | the allocation of allowances to each aircraft operator for each year, which shall be determined by dividing its allocation of allowances under point (a) by the number of full calendar years remaining in the period referred to in Article 3c(2) to which the allocation relates. |
| --- | --- |

(b)

the allocation of allowances to each aircraft operator for each year, which shall be determined by dividing its allocation of allowances under point (a) by the number of full calendar years remaining in the period referred to in Article 3c(2) to which the allocation relates.

8.   Any unallocated allowances in the special reserve shall be auctioned by Member States.

9.   The Commission may establish detailed rules on the operation of the special reserve under this Article, including the assessment of compliance with eligibility criteria under paragraph 1. Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 23(3).

Article 3g

Monitoring and reporting plans

The administering Member State shall ensure that each aircraft operator submits to the competent authority in that State a monitoring plan setting out measures to monitor and report emissions and tonne-kilometre data for the purpose of an application under Article 3e and that such plans are approved by the competent authority in accordance with the guidelines adopted pursuant to Article 14.’;

| 5. | the following title and Article shall be inserted:
  ‘CHAPTER III
  Stationary installations
  Article 3h
  Scope
  The provisions of this Chapter shall apply to greenhouse gas emissions permits and the allocation and issue of allowances in respect of activities listed in Annex I other than aviation activities.’; |
| --- | --- |

5.

the following title and Article shall be inserted:

‘CHAPTER III

Stationary installations

Article 3h

Scope

The provisions of this Chapter shall apply to greenhouse gas emissions permits and the allocation and issue of allowances in respect of activities listed in Annex I other than aviation activities.’;

| 6. | point (e) of Article 6(2) shall be replaced by the following:






  ‘(e) | an obligation to surrender allowances, other than allowances issued under Chapter II, equal to the total emissions of the installation in each calendar year, as verified in accordance with Article 15, within four months following the end of that year.’; |
| --- | --- | --- |

6.

point (e) of Article 6(2) shall be replaced by the following:

‘(e)

an obligation to surrender allowances, other than allowances issued under Chapter II, equal to the total emissions of the installation in each calendar year, as verified in accordance with Article 15, within four months following the end of that year.’;

| 7. | the following title shall be inserted after Article 11: |
| --- | --- |

7.

the following title shall be inserted after Article 11:

| 8. | in Article 11a the following paragraph shall be inserted:
  ‘1a.   Subject to paragraph 3, during each period referred to in Article 3c, Member States shall allow each aircraft operator to use CERs and ERUs from project activities. During the period referred to in Article 3c(1), aircraft operators may use CERs and ERUs, up to 15 % of the number of allowances they are required to surrender pursuant to Article 12(2a).
  For subsequent periods, the percentage shall be decided in line with the procedure for determining the use of CERs and ERUs from project activities, as part of the review of this Directive and taking into consideration the development of the international climate change regime.
  The Commission shall publish this percentage at least six months before the start of each period referred to in Article 3c.’; |
| --- | --- |

8.

in Article 11a the following paragraph shall be inserted:

‘1a.   Subject to paragraph 3, during each period referred to in Article 3c, Member States shall allow each aircraft operator to use CERs and ERUs from project activities. During the period referred to in Article 3c(1), aircraft operators may use CERs and ERUs, up to 15 % of the number of allowances they are required to surrender pursuant to Article 12(2a).

For subsequent periods, the percentage shall be decided in line with the procedure for determining the use of CERs and ERUs from project activities, as part of the review of this Directive and taking into consideration the development of the international climate change regime.

The Commission shall publish this percentage at least six months before the start of each period referred to in Article 3c.’;

| 9. | in Article 11b(2), the word ‘installations’ shall be replaced by the word ‘activities’; |
| --- | --- |

9.

in Article 11b(2), the word ‘installations’ shall be replaced by the word ‘activities’;

| 10. | Article 12 shall be amended as follows:






  (a) | in paragraph 2, after the word ‘purpose’ the words ‘of meeting an aircraft operator's obligations under paragraph 2a or’ shall be inserted; |
| --- | --- | --- |

10.

Article 12 shall be amended as follows:

(a)

in paragraph 2, after the word ‘purpose’ the words ‘of meeting an aircraft operator's obligations under paragraph 2a or’ shall be inserted;

| (b) | the following paragraph shall be inserted:
  ‘2a.   Administering Member States shall ensure that, by 30 April each year, each aircraft operator surrenders a number of allowances equal to the total emissions during the preceding calendar year from aviation activities listed in Annex I for which it is the aircraft operator, as verified in accordance with Article 15. Member States shall ensure that allowances surrendered in accordance with this paragraph are subsequently cancelled.’; |
| --- | --- |

(b)

the following paragraph shall be inserted:

‘2a.   Administering Member States shall ensure that, by 30 April each year, each aircraft operator surrenders a number of allowances equal to the total emissions during the preceding calendar year from aviation activities listed in Annex I for which it is the aircraft operator, as verified in accordance with Article 15. Member States shall ensure that allowances surrendered in accordance with this paragraph are subsequently cancelled.’;

| (c) | paragraph 3 shall be replaced by the following:
  ‘3.   Member States shall ensure that, by 30 April each year, the operator of each installation surrenders a number of allowances, other than allowances issued under Chapter II, equal to the total emissions from that installation during the preceding calendar year as verified in accordance with Article 15, and that these are subsequently cancelled.’; |
| --- | --- |

(c)

paragraph 3 shall be replaced by the following:

‘3.   Member States shall ensure that, by 30 April each year, the operator of each installation surrenders a number of allowances, other than allowances issued under Chapter II, equal to the total emissions from that installation during the preceding calendar year as verified in accordance with Article 15, and that these are subsequently cancelled.’;

| 11. | in Article 13(3), the words ‘Article 12(3)’ shall be replaced by the words ‘Article 12(2a) or (3)’; |
| --- | --- |

11.

in Article 13(3), the words ‘Article 12(3)’ shall be replaced by the words ‘Article 12(2a) or (3)’;

| 12. | Article 14 shall be amended as follows:






  (a) | in the first sentence of paragraph 1:






  (i) | after the words ‘those activities’ the words ‘and of tonne-kilometre data for the purpose of an application under Articles 3e or 3f’ shall be inserted; |
| --- | --- | --- | --- |

12.

Article 14 shall be amended as follows:

(a)

in the first sentence of paragraph 1:

(i)

after the words ‘those activities’ the words ‘and of tonne-kilometre data for the purpose of an application under Articles 3e or 3f’ shall be inserted;

| (ii) | the words ‘, by 30 September 2003’ shall be deleted; |
| --- | --- |

(ii)

the words ‘, by 30 September 2003’ shall be deleted;

| (b) | paragraph 3 shall be replaced by the following:
  ‘3.   Member States shall ensure that each operator or aircraft operator reports the emissions during each calendar year from the installation, or, from 1 January 2010, the aircraft, which it operates to the competent authority after the end of that year in accordance with the guidelines.’; |
| --- | --- |

(b)

paragraph 3 shall be replaced by the following:

‘3.   Member States shall ensure that each operator or aircraft operator reports the emissions during each calendar year from the installation, or, from 1 January 2010, the aircraft, which it operates to the competent authority after the end of that year in accordance with the guidelines.’;

| 13. | Article 15 shall be replaced by the following:
  ‘Article 15
  Verification
  Member States shall ensure that the reports submitted by operators and aircraft operators pursuant to Article 14(3) are verified in accordance with the criteria set out in Annex V and any detailed provisions adopted by the Commission in accordance with this Article, and that the competent authority is informed thereof.
  Member States shall ensure that an operator or aircraft operator whose report has not been verified as satisfactory in accordance with the criteria set out in Annex V and any detailed provisions adopted by the Commission in accordance with this Article by 31 March each year for emissions during the preceding year cannot make further transfers of allowances until a report from that operator or aircraft operator has been verified as satisfactory.
  The Commission may adopt detailed provisions for the verification of reports submitted by aircraft operators pursuant to Article 14(3) and applications under Articles 3e and 3f, in accordance with the regulatory procedure referred to in Article 23(2).’; |
| --- | --- |

13.

Article 15 shall be replaced by the following:

‘Article 15

Verification

Member States shall ensure that the reports submitted by operators and aircraft operators pursuant to Article 14(3) are verified in accordance with the criteria set out in Annex V and any detailed provisions adopted by the Commission in accordance with this Article, and that the competent authority is informed thereof.

Member States shall ensure that an operator or aircraft operator whose report has not been verified as satisfactory in accordance with the criteria set out in Annex V and any detailed provisions adopted by the Commission in accordance with this Article by 31 March each year for emissions during the preceding year cannot make further transfers of allowances until a report from that operator or aircraft operator has been verified as satisfactory.

The Commission may adopt detailed provisions for the verification of reports submitted by aircraft operators pursuant to Article 14(3) and applications under Articles 3e and 3f, in accordance with the regulatory procedure referred to in Article 23(2).’;

| 14. | Article 16 shall be amended as follows:






  (a) | in paragraph 1, the words ‘by 31 December 2003 at the latest,’ shall be deleted; |
| --- | --- | --- |

14.

Article 16 shall be amended as follows:

(a)

in paragraph 1, the words ‘by 31 December 2003 at the latest,’ shall be deleted;

| (b) | paragraphs 2 and 3 shall be replaced by the following:
  ‘2.   Member States shall ensure publication of the names of operators and aircraft operators who are in breach of requirements to surrender sufficient allowances under this Directive.
  3.   Member States shall ensure that any operator or aircraft operator who does not surrender sufficient allowances by 30 April of each year to cover its emissions during the preceding year shall be held liable for the payment of an excess emissions penalty. The excess emissions penalty shall be EUR 100 for each tonne of carbon dioxide equivalent emitted for which the operator or aircraft operator has not surrendered allowances. Payment of the excess emissions penalty shall not release the operator or aircraft operator from the obligation to surrender an amount of allowances equal to those excess emissions when surrendering allowances in relation to the following calendar year.’; |
| --- | --- |

(b)

paragraphs 2 and 3 shall be replaced by the following:

‘2.   Member States shall ensure publication of the names of operators and aircraft operators who are in breach of requirements to surrender sufficient allowances under this Directive.

3.   Member States shall ensure that any operator or aircraft operator who does not surrender sufficient allowances by 30 April of each year to cover its emissions during the preceding year shall be held liable for the payment of an excess emissions penalty. The excess emissions penalty shall be EUR 100 for each tonne of carbon dioxide equivalent emitted for which the operator or aircraft operator has not surrendered allowances. Payment of the excess emissions penalty shall not release the operator or aircraft operator from the obligation to surrender an amount of allowances equal to those excess emissions when surrendering allowances in relation to the following calendar year.’;

| (c) | the following paragraphs shall be added:
  ‘5.   In the event that an aircraft operator fails to comply with the requirements of this Directive and where other enforcement measures have failed to ensure compliance, its administering Member State may request the Commission to decide on the imposition of an operating ban on the aircraft operator concerned.
  6.   Any request by an administering Member State under paragraph 5 shall include:






  (a) | evidence that the aircraft operator has not complied with its obligations under this Directive; |
| --- | --- | --- |

(c)

the following paragraphs shall be added:

‘5.   In the event that an aircraft operator fails to comply with the requirements of this Directive and where other enforcement measures have failed to ensure compliance, its administering Member State may request the Commission to decide on the imposition of an operating ban on the aircraft operator concerned.

6.   Any request by an administering Member State under paragraph 5 shall include:

(a)

evidence that the aircraft operator has not complied with its obligations under this Directive;

| (b) | details of the enforcement action which has been taken by that Member State; |
| --- | --- |

(b)

details of the enforcement action which has been taken by that Member State;

| (c) | a justification for the imposition of an operating ban at Community level; and |
| --- | --- |

(c)

a justification for the imposition of an operating ban at Community level; and

| (d) | a recommendation for the scope of an operating ban at Community level and any conditions that should be applied. |
| --- | --- |

(d)

a recommendation for the scope of an operating ban at Community level and any conditions that should be applied.

7.   When requests such as those referred to in paragraph 5 are addressed to the Commission, the Commission shall inform the other Member States (through their representatives on the Committee referred to in Article 23(1) in accordance with the Committee's Rules of Procedure).

8.   The adoption of a decision following a request pursuant to paragraph 5 shall be preceded, when appropriate and practicable, by consultations with the authorities responsible for regulatory oversight of the aircraft operator concerned. Whenever possible, consultations shall be held jointly by the Commission and the Member States.

9.   When the Commission is considering whether to adopt a decision following a request pursuant to paragraph 5, it shall disclose to the aircraft operator concerned the essential facts and considerations which form the basis for such decision. The aircraft operator concerned shall be given an opportunity to submit written comments to the Commission within 10 working days from the date of disclosure.

10.   At the request of a Member State, the Commission, in accordance with the regulatory procedure referred to in Article 23(2), may adopt a decision to impose an operating ban on the aircraft operator concerned.

11.   Each Member State shall enforce, within its territory, any decisions adopted under paragraph 10. It shall inform the Commission of any measures taken to implement such decisions.

12.   Where appropriate, detailed rules shall be established in respect of the procedures referred to in this Article. Those measures, designed to amend non-essential elements of this Directive by supplementing it, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 23(3).’;

| 15. | the following Articles shall be inserted:
  ‘Article 18a
  Administering Member State
  1.   The administering Member State in respect of an aircraft operator shall be:






  (a) | in the case of an aircraft operator with a valid operating licence granted by a Member State in accordance with the provisions of Council Regulation (EEC) No 2407/92 of 23 July 1992 on licensing of air carriers (12), the Member State which granted the operating licence in respect of that aircraft operator; and |
| --- | --- | --- |

15.

the following Articles shall be inserted:

‘Article 18a

Administering Member State

1.   The administering Member State in respect of an aircraft operator shall be:

(a)

in the case of an aircraft operator with a valid operating licence granted by a Member State in accordance with the provisions of Council Regulation (EEC) No 2407/92 of 23 July 1992 on licensing of air carriers (12), the Member State which granted the operating licence in respect of that aircraft operator; and

12

| (b) | in all other cases, the Member State with the greatest estimated attributed aviation emissions from flights performed by that aircraft operator in the base year. |
| --- | --- |

(b)

in all other cases, the Member State with the greatest estimated attributed aviation emissions from flights performed by that aircraft operator in the base year.

2.   Where in the first two years of any period referred to in Article 3c, none of the attributed aviation emissions from flights performed by an aircraft operator falling within paragraph 1(b) of this Article are attributed to its administering Member State, the aircraft operator shall be transferred to another administering Member State in respect of the next period. The new administering Member State shall be the Member State with the greatest estimated attributed aviation emissions from flights performed by that aircraft operator during the first two years of the previous period.

3.   Based on the best available information, the Commission shall:

| (a) | before 1 February 2009, publish a list of aircraft operators which performed an aviation activity listed in Annex I on or after 1 January 2006 specifying the administering Member State for each aircraft operator in accordance with paragraph 1; and |
| --- | --- |

(a)

before 1 February 2009, publish a list of aircraft operators which performed an aviation activity listed in Annex I on or after 1 January 2006 specifying the administering Member State for each aircraft operator in accordance with paragraph 1; and

| (b) | before 1 February of each subsequent year, update the list to include aircraft operators which have subsequently performed an aviation activity listed in Annex I. |
| --- | --- |

(b)

before 1 February of each subsequent year, update the list to include aircraft operators which have subsequently performed an aviation activity listed in Annex I.

4.   For the purposes of paragraph 1, “base year” means, in relation to an aircraft operator which started operating in the Community after 1 January 2006, the first calendar year of operation, and in all other cases, the calendar year starting on 1 January 2006.

Article 18b

Assistance from Eurocontrol

For the purposes of carrying out its obligations under Articles 3c(4) and 18a, the Commission may request the assistance of Eurocontrol and may conclude to that effect any appropriate agreements with that organisation.

| 16. | in Article 19, paragraph 3 shall be amended as follows:






  (a) | the last sentence shall be replaced by the following:
  ‘That Regulation shall also include provisions concerning the use and identification of CERs and ERUs in the Community scheme and the monitoring of the level of such use and provisions to take account of the inclusion of aviation activities in the Community scheme.’; |
| --- | --- | --- |

16.

in Article 19, paragraph 3 shall be amended as follows:

(a)

the last sentence shall be replaced by the following:

‘That Regulation shall also include provisions concerning the use and identification of CERs and ERUs in the Community scheme and the monitoring of the level of such use and provisions to take account of the inclusion of aviation activities in the Community scheme.’;

| (b) | the following subparagraph shall be added:
  ‘The Regulation on a standardised and secured system of registries shall ensure that allowances, CERs and ERUs surrendered by aircraft operators are transferred to Member States' retirement accounts for the Kyoto Protocol's first commitment period only to the extent that those allowances, CERs and ERUs correspond to emissions included in the national totals of Member States' national inventories for that period.’; |
| --- | --- |

(b)

the following subparagraph shall be added:

‘The Regulation on a standardised and secured system of registries shall ensure that allowances, CERs and ERUs surrendered by aircraft operators are transferred to Member States' retirement accounts for the Kyoto Protocol's first commitment period only to the extent that those allowances, CERs and ERUs correspond to emissions included in the national totals of Member States' national inventories for that period.’;

| 17. | in Article 23, paragraph 3 shall be replaced by the following:
  ‘3.   Where reference is made to this paragraph, Article 5a(1) to (4) and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.’; |
| --- | --- |

17.

in Article 23, paragraph 3 shall be replaced by the following:

‘3.   Where reference is made to this paragraph, Article 5a(1) to (4) and Article 7 of Decision 1999/468/EC shall apply, having regard to the provisions of Article 8 thereof.’;

| 18. | the following Article shall be inserted:
  ‘Article 25a
  Third country measures to reduce the climate change impact of aviation
  1.   Where a third country adopts measures for reducing the climate change impact of flights departing from that country which land in the Community, the Commission, after consulting with that third country, and with Member States within the Committee referred to in Article 23(1), shall consider options available in order to provide for optimal interaction between the Community scheme and that country's measures.
  Where necessary, the Commission may adopt amendments to provide for flights arriving from the third country concerned to be excluded from the aviation activities listed in Annex I or to provide for any other amendments to the aviation activities listed in Annex I which are required by an agreement pursuant to the fourth subparagraph. Those measures, designed to amend non-essential elements of this Directive, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 23(3).
  The Commission may propose to the European Parliament and the Council any other amendments to this Directive.
  The Commission may also, where appropriate, make recommendations to the Council in accordance with Article 300(1) of the Treaty to open negotiations with a view to concluding an agreement with the third country concerned.
  2.   The Community and its Member States shall continue to seek an agreement on global measures to reduce greenhouse gas emissions from aviation. In the light of any such agreement, the Commission shall consider whether amendments to this Directive as it applies to aircraft operators are necessary.’; |
| --- | --- |

18.

the following Article shall be inserted:

‘Article 25a

Third country measures to reduce the climate change impact of aviation

1.   Where a third country adopts measures for reducing the climate change impact of flights departing from that country which land in the Community, the Commission, after consulting with that third country, and with Member States within the Committee referred to in Article 23(1), shall consider options available in order to provide for optimal interaction between the Community scheme and that country's measures.

Where necessary, the Commission may adopt amendments to provide for flights arriving from the third country concerned to be excluded from the aviation activities listed in Annex I or to provide for any other amendments to the aviation activities listed in Annex I which are required by an agreement pursuant to the fourth subparagraph. Those measures, designed to amend non-essential elements of this Directive, shall be adopted in accordance with the regulatory procedure with scrutiny referred to in Article 23(3).

The Commission may propose to the European Parliament and the Council any other amendments to this Directive.

The Commission may also, where appropriate, make recommendations to the Council in accordance with Article 300(1) of the Treaty to open negotiations with a view to concluding an agreement with the third country concerned.

2.   The Community and its Member States shall continue to seek an agreement on global measures to reduce greenhouse gas emissions from aviation. In the light of any such agreement, the Commission shall consider whether amendments to this Directive as it applies to aircraft operators are necessary.’;

| 19. | Article 28 shall be amended as follows:






  (a) | point (b) of paragraph 3 shall be replaced by the following:






  ‘(b) | to be responsible for surrendering allowances, other than allowances issued under Chapter II, equal to the total emissions from installations in the pool, by way of derogation from Articles 6(2)(e) and 12(3); and’; |
| --- | --- | --- | --- |

19.

Article 28 shall be amended as follows:

(a)

point (b) of paragraph 3 shall be replaced by the following:

‘(b)

to be responsible for surrendering allowances, other than allowances issued under Chapter II, equal to the total emissions from installations in the pool, by way of derogation from Articles 6(2)(e) and 12(3); and’;

| (b) | paragraph 4 shall be replaced by the following:
  ‘4.   The trustee shall be subject to the penalties applicable for breaches of requirements to surrender sufficient allowances, other than allowances issued under Chapter II, to cover the total emissions from installations in the pool, by way of derogation from Article 16(2), (3) and (4).’; |
| --- | --- |

(b)

paragraph 4 shall be replaced by the following:

‘4.   The trustee shall be subject to the penalties applicable for breaches of requirements to surrender sufficient allowances, other than allowances issued under Chapter II, to cover the total emissions from installations in the pool, by way of derogation from Article 16(2), (3) and (4).’;

| 20. | the following paragraph shall be added to Article 30:
  ‘4.   By 1 June 2015 the Commission shall, on the basis of monitoring and experience of the application of this Directive, review the functioning of this Directive in relation to aviation activities in Annex I and may make proposals as appropriate. The Commission shall give consideration in particular to:






  (a) | the implications and impacts of this Directive as regards the overall functioning of the Community scheme; |
| --- | --- | --- |

20.

the following paragraph shall be added to Article 30:

‘4.   By 1 June 2015 the Commission shall, on the basis of monitoring and experience of the application of this Directive, review the functioning of this Directive in relation to aviation activities in Annex I and may make proposals as appropriate. The Commission shall give consideration in particular to:

(a)

the implications and impacts of this Directive as regards the overall functioning of the Community scheme;

| (b) | the functioning of the aviation allowance market, covering in particular any possible market disturbances; |
| --- | --- |

(b)

the functioning of the aviation allowance market, covering in particular any possible market disturbances;

| (c) | the environmental effectiveness of the Community scheme and the extent by which the total quantity of allowances to be allocated to aircraft operators under Article 3c should be reduced in line with overall EU emissions reduction targets; |
| --- | --- |

(c)

the environmental effectiveness of the Community scheme and the extent by which the total quantity of allowances to be allocated to aircraft operators under Article 3c should be reduced in line with overall EU emissions reduction targets;

| (d) | the impact of the Community scheme on the aviation sector; |
| --- | --- |

(d)

the impact of the Community scheme on the aviation sector;

| (e) | continuing with the special reserve for aircraft operators, taking into account the likely convergence of growth rates across the industry; |
| --- | --- |

(e)

continuing with the special reserve for aircraft operators, taking into account the likely convergence of growth rates across the industry;

| (f) | the impact of the Community scheme on the structural dependency on aviation transport of islands, landlocked regions and peripheral regions of the Community; |
| --- | --- |

(f)

the impact of the Community scheme on the structural dependency on aviation transport of islands, landlocked regions and peripheral regions of the Community;

| (g) | whether a gateway system should be included to facilitate the trading of allowances between aircraft operators and operators of installations whilst ensuring that no transactions would result in a net transfer of allowances from aircraft operators to operators of installations; |
| --- | --- |

(g)

whether a gateway system should be included to facilitate the trading of allowances between aircraft operators and operators of installations whilst ensuring that no transactions would result in a net transfer of allowances from aircraft operators to operators of installations;

| (h) | the implications of the exclusion thresholds as specified in Annex I in terms of certified maximum take-off mass and number of flights per year performed by an aircraft operator; and |
| --- | --- |

(h)

the implications of the exclusion thresholds as specified in Annex I in terms of certified maximum take-off mass and number of flights per year performed by an aircraft operator; and

| (i) | the impact of the exemption from the Community scheme of certain flights performed in the framework of public service obligations imposed in accordance with Council Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes (13). |
| --- | --- |

(i)

the impact of the exemption from the Community scheme of certain flights performed in the framework of public service obligations imposed in accordance with Council Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes (13).

13

The Commission shall then report to the European Parliament and the Council.

| 21. | the following title shall be inserted after Article 30: |
| --- | --- |

21.

the following title shall be inserted after Article 30:

| 22. | Annexes I, IV and V shall be amended in accordance with the Annex to this Directive. |
| --- | --- |

22.

Annexes I, IV and V shall be amended in accordance with the Annex to this Directive.

Article 2

Transposition

1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before ... (14). They shall forthwith inform the Commission thereof.

14

When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive. The Commission shall inform the Member States thereof.

Article 3

Entry into force

This Directive shall enter into force on the twentieth day following its publication in the Official Journal of the European Union.

Official Journal of the European Union

Article 4

Addressees

This Directive is addressed to the Member States.

Done at ...

For the European Parliament

The President

...

For the Council

The President

...

---

(1)  OJ C 175, 27.7.2007, p. 47.

1

(2)  OJ C 305, 15.12.2007, p. 15.

2

(3)  Opinion of the European Parliament of 13 November 2007 (not yet published in the Official Journal), Council Common Position of 18 April 2008 and Position of the European Parliament of ... (not yet published in the Official Journal). Council Decision of ...

3

(4)  OJ L 275, 25.10.2003, p. 32. Directive as amended by Directive 2004/101/EC (OJ L 338, 13.11.2004, p. 18).

4

(5)  OJ L 33, 7.2.1994, p. 11.

5

(6)  OJ L 130, 15.5.2002, p. 1.

6

(7)  OJ L 242, 10.9.2002, p. 1.

7

(8)  OJ C 303 E, 13.12.2006, p. 119.

8

(9)  OJ L 184, 17.7.1999, p. 23. Decision as amended by Decision 2006/512/EC (OJ L 200, 22.7.2006, p. 11).

9

(10)  OJ C 321, 31.12.2003, p. 1.

10

(11)  Six months from the date of entry into force of this Directive.

11

(12)  OJ L 240, 24.8.1992, p. 1.’;

12

(13)  OJ L 240, 24.8.1992, p. 8. Regulation as last amended by Regulation (EC) No 1791/2006 (OJ L 363, 20.12.2006, p. 1).’;

13

(14)  18 months after date of entry into force of this Directive.

14

---

ANNEX

Annexes I, IV and V to Directive 2003/87/EC are hereby amended as follows:

| 1. | Annex I shall be amended as follows:






  (a) | the title shall be replaced by the following: |
| --- | --- | --- |

1.

Annex I shall be amended as follows:

(a)

the title shall be replaced by the following:

| (b) | the following subparagraph shall be inserted in paragraph 2 before the table:
  ‘For the year 2012 all flights which arrive at or depart from an aerodrome situated in the territory of a Member State to which the Treaty applies shall be included.’; |
| --- | --- |

(b)

the following subparagraph shall be inserted in paragraph 2 before the table:

‘For the year 2012 all flights which arrive at or depart from an aerodrome situated in the territory of a Member State to which the Treaty applies shall be included.’;

| (c) | the following category of activity shall be added:






  ‘Aviation |
| --- | --- |
| Flights which depart from or arrive in an aerodrome situated in the territory of a Member State to which the Treaty applies.
  This activity shall not include:






  (a) | flights performed exclusively for the transport, on official mission, of a reigning Monarch and his immediate family, Heads of State, Heads of Government and Government Ministers, of a country other than a Member State, where this is substantiated by an appropriate status indicator in the flight plan; |

(c)

the following category of activity shall be added:

‘Aviation

Flights which depart from or arrive in an aerodrome situated in the territory of a Member State to which the Treaty applies.

This activity shall not include:

(a)

flights performed exclusively for the transport, on official mission, of a reigning Monarch and his immediate family, Heads of State, Heads of Government and Government Ministers, of a country other than a Member State, where this is substantiated by an appropriate status indicator in the flight plan;

| (b) | military flights performed by military aircraft and customs and police flights; |
| --- | --- |

(b)

military flights performed by military aircraft and customs and police flights;

| (c) | flights related to search and rescue, fire-fighting flights, humanitarian flights and emergency medical service flights authorised by the appropriate competent authority; |
| --- | --- |

(c)

flights related to search and rescue, fire-fighting flights, humanitarian flights and emergency medical service flights authorised by the appropriate competent authority;

| (d) | any flights performed exclusively under visual flight rules as defined in Annex 2 to the Chicago Convention; |
| --- | --- |

(d)

any flights performed exclusively under visual flight rules as defined in Annex 2 to the Chicago Convention;

| (e) | flights terminating at the aerodrome from which the aircraft has taken off and during which no intermediate landing has been made; |
| --- | --- |

(e)

flights terminating at the aerodrome from which the aircraft has taken off and during which no intermediate landing has been made;

| (f) | training flights performed exclusively for the purpose of obtaining a licence, or a rating in the case of cockpit flight crew where this is substantiated by an appropriate remark in the flight plan provided that the flight does not serve for the transport of passengers and/or cargo or for the positioning or ferrying of the aircraft; |
| --- | --- |

(f)

training flights performed exclusively for the purpose of obtaining a licence, or a rating in the case of cockpit flight crew where this is substantiated by an appropriate remark in the flight plan provided that the flight does not serve for the transport of passengers and/or cargo or for the positioning or ferrying of the aircraft;

| (g) | flights performed exclusively for the purpose of checking, testing or certifying aircraft or equipment whether airborne or ground-based; |
| --- | --- |

(g)

flights performed exclusively for the purpose of checking, testing or certifying aircraft or equipment whether airborne or ground-based;

| (h) | flights performed by aircraft with a certified maximum take-off mass of less than 5 700 kg; |
| --- | --- |

(h)

flights performed by aircraft with a certified maximum take-off mass of less than 5 700 kg;

| (i) | flights performed in the framework of public service obligations imposed in accordance with Regulation (EEC) No 2408/92 on routes within outermost regions as specified in Article 299(2) of the Treaty or on routes where the capacity offered does not exceed 30 000 seats per year; and |
| --- | --- |

(i)

flights performed in the framework of public service obligations imposed in accordance with Regulation (EEC) No 2408/92 on routes within outermost regions as specified in Article 299(2) of the Treaty or on routes where the capacity offered does not exceed 30 000 seats per year; and

| (j) | flights, other than flights performed exclusively for the transport, on official mission, of a reigning Monarch and his immediate family, Heads of State, Heads of Government and Government Ministers, of an EU Member State, performed by a commercial air transport operator operating, for three consecutive four-month periods, fewer than 243 flights per period, which, but for this point, would fall within this activity. |
| --- | --- |

(j)

flights, other than flights performed exclusively for the transport, on official mission, of a reigning Monarch and his immediate family, Heads of State, Heads of Government and Government Ministers, of an EU Member State, performed by a commercial air transport operator operating, for three consecutive four-month periods, fewer than 243 flights per period, which, but for this point, would fall within this activity.

Carbon dioxide’

| 2. | Annex IV shall be amended as follows:






  (a) | the following title shall be inserted after the title of the Annex: |
| --- | --- | --- |

2.

Annex IV shall be amended as follows:

(a)

the following title shall be inserted after the title of the Annex:

| (b) | the following part shall be added:
  ‘PART B — MONITORING AND REPORTING OF EMISSIONS FROM AVIATION ACTIVITIES
  Monitoring of carbon dioxide emissions
  Emissions shall be monitored by calculation. Emissions shall be calculated using the formula:

  Fuel consumption × emission factor

  Fuel consumption shall include fuel consumed by the auxiliary power unit. Actual fuel consumption for each flight shall be used wherever possible and shall be calculated using the formula:
  Amount of fuel contained in aircraft tanks once fuel uplift for the flight is complete – amount of fuel contained in aircraft tanks once fuel uplift for subsequent flight is complete + fuel uplift for that subsequent flight.
  If actual fuel consumption data are not available, a standardised tiered method shall be used to estimate fuel consumption data based on best available information.
  Default IPCC emission factors, taken from the 2006 IPCC Inventory Guidelines or subsequent updates of these Guidelines, shall be used unless activity-specific emission factors identified by independent accredited laboratories using accepted analytical methods are more accurate. The emission factor for biomass shall be zero.
  A separate calculation shall be made for each flight and for each fuel.
  Reporting of emissions
  Each aircraft operator shall include the following information in its report under Article 14(3):






  A. | Data identifying the aircraft operator, including:






  — | name of the aircraft operator, |
| --- | --- | --- | --- |

(b)

the following part shall be added:

‘PART B — MONITORING AND REPORTING OF EMISSIONS FROM AVIATION ACTIVITIES

Monitoring of carbon dioxide emissions

Emissions shall be monitored by calculation. Emissions shall be calculated using the formula:

Fuel consumption × emission factor

Fuel consumption shall include fuel consumed by the auxiliary power unit. Actual fuel consumption for each flight shall be used wherever possible and shall be calculated using the formula:

Amount of fuel contained in aircraft tanks once fuel uplift for the flight is complete – amount of fuel contained in aircraft tanks once fuel uplift for subsequent flight is complete + fuel uplift for that subsequent flight.

If actual fuel consumption data are not available, a standardised tiered method shall be used to estimate fuel consumption data based on best available information.

Default IPCC emission factors, taken from the 2006 IPCC Inventory Guidelines or subsequent updates of these Guidelines, shall be used unless activity-specific emission factors identified by independent accredited laboratories using accepted analytical methods are more accurate. The emission factor for biomass shall be zero.

A separate calculation shall be made for each flight and for each fuel.

Reporting of emissions

Each aircraft operator shall include the following information in its report under Article 14(3):

A.

Data identifying the aircraft operator, including:

—

name of the aircraft operator,

| — | its administering Member State, |
| --- | --- |

—

its administering Member State,

| — | its address, including postcode and country and, where different, its contact address in the administering Member State, |
| --- | --- |

—

its address, including postcode and country and, where different, its contact address in the administering Member State,

| — | the aircraft registration numbers and types of aircraft used in the period covered by the report to perform the aviation activities listed in Annex I for which it is the aircraft operator, |
| --- | --- |

—

the aircraft registration numbers and types of aircraft used in the period covered by the report to perform the aviation activities listed in Annex I for which it is the aircraft operator,

| — | the number and issuing authority of the air operator certificate and operating licence under which the aviation activities listed in Annex I for which it is the aircraft operator were performed, |
| --- | --- |

—

the number and issuing authority of the air operator certificate and operating licence under which the aviation activities listed in Annex I for which it is the aircraft operator were performed,

| — | address, telephone, fax and email details for a contact person, and |
| --- | --- |

—

address, telephone, fax and email details for a contact person, and

| — | name of the aircraft owner. |
| --- | --- |

—

name of the aircraft owner.

| B. | For each type of fuel for which emissions are calculated:






  — | fuel consumption, |
| --- | --- | --- |

B.

For each type of fuel for which emissions are calculated:

—

fuel consumption,

| — | emission factor, |
| --- | --- |

—

emission factor,

| — | total aggregated emissions from all flights performed during the period covered by the report which fall within the aviation activities listed in Annex I for which it is the aircraft operator, |
| --- | --- |

—

total aggregated emissions from all flights performed during the period covered by the report which fall within the aviation activities listed in Annex I for which it is the aircraft operator,

| — | aggregated emissions from:






  — | all flights performed during the period covered by the report which fall within the aviation activities listed in Annex I for which it is the aircraft operator and which departed from an aerodrome situated in the territory of a Member State and arrived at an aerodrome situated in the territory of the same Member State, |
| --- | --- | --- |

—

aggregated emissions from:

—

all flights performed during the period covered by the report which fall within the aviation activities listed in Annex I for which it is the aircraft operator and which departed from an aerodrome situated in the territory of a Member State and arrived at an aerodrome situated in the territory of the same Member State,

| — | all other flights performed during the period covered by the report which fall within the aviation activities listed in Annex I for which it is the aircraft operator, |
| --- | --- |

—

all other flights performed during the period covered by the report which fall within the aviation activities listed in Annex I for which it is the aircraft operator,

| — | aggregated emissions from all flights performed during the period covered by the report which fall within the aviation activities listed in Annex I for which it is the aircraft operator and which:






  — | departed from each Member State, and |
| --- | --- | --- |

—

aggregated emissions from all flights performed during the period covered by the report which fall within the aviation activities listed in Annex I for which it is the aircraft operator and which:

—

departed from each Member State, and

| — | arrived in each Member State from a third country, |
| --- | --- |

—

arrived in each Member State from a third country,

| — | uncertainty. |
| --- | --- |

—

uncertainty.

Monitoring of tonne-kilometre data for the purpose of Articles 3e and 3f

For the purpose of applying for an allocation of allowances in accordance with Article 3e(1) or Article 3f(2), the amount of aviation activity shall be calculated in tonne-kilometres using the following formula:

tonne kilometres = distance × payload

where:

“distance” means the great circle distance between the aerodrome of departure and the aerodrome of arrival plus an additional fixed factor of 95 km; and

“payload” means the total mass of freight, mail and passengers carried.

For the purposes of calculating the payload:

| — | the number of passengers shall be the number of persons on-board excluding crew members, |
| --- | --- |

—

the number of passengers shall be the number of persons on-board excluding crew members,

| — | an aircraft operator may choose to apply either the actual or standard mass for passengers and checked baggage contained in its mass and balance documentation for the relevant flights or a default value of 110 kg for each passenger and his checked baggage. |
| --- | --- |

—

an aircraft operator may choose to apply either the actual or standard mass for passengers and checked baggage contained in its mass and balance documentation for the relevant flights or a default value of 110 kg for each passenger and his checked baggage.

Reporting of tonne-kilometre data for the purpose of Articles 3e and 3f

Each aircraft operator shall include the following information in its application under Article 3e(1) or Article 3f(2):

| A. | Data identifying the aircraft operator, including:






  — | name of the aircraft operator, |
| --- | --- | --- |

A.

Data identifying the aircraft operator, including:

—

name of the aircraft operator,

| — | its administering Member State, |
| --- | --- |

—

its administering Member State,

| — | its address, including postcode and country and, where different, its contact address in the administering Member State, |
| --- | --- |

—

its address, including postcode and country and, where different, its contact address in the administering Member State,

| — | the aircraft registration numbers and types of aircraft used during the year covered by the application to perform the aviation activities listed in Annex I for which it is the aircraft operator, |
| --- | --- |

—

the aircraft registration numbers and types of aircraft used during the year covered by the application to perform the aviation activities listed in Annex I for which it is the aircraft operator,

| — | the number and issuing authority of the air operator certificate and operating licence under which the aviation activities listed in Annex I for which it is the aircraft operator were performed, |
| --- | --- |

—

the number and issuing authority of the air operator certificate and operating licence under which the aviation activities listed in Annex I for which it is the aircraft operator were performed,

| — | address, telephone, fax and email details for a contact person, and |
| --- | --- |

—

address, telephone, fax and email details for a contact person, and

| — | name of the aircraft owner. |
| --- | --- |

—

name of the aircraft owner.

| B. | Tonne-kilometre data:






  — | number of flights by aerodrome pair, |
| --- | --- | --- |

B.

Tonne-kilometre data:

—

number of flights by aerodrome pair,

| — | number of passenger-kilometres by aerodrome pair, |
| --- | --- |

—

number of passenger-kilometres by aerodrome pair,

| — | number of tonne-kilometres by aerodrome pair, |
| --- | --- |

—

number of tonne-kilometres by aerodrome pair,

| — | chosen method for calculation of mass for passengers and checked baggage, |
| --- | --- |

—

chosen method for calculation of mass for passengers and checked baggage,

| — | total number of tonne-kilometres for all flights performed during the year to which the report relates falling within the aviation activities listed in Annex I for which it is the aircraft operator.’; |
| --- | --- |

—

total number of tonne-kilometres for all flights performed during the year to which the report relates falling within the aviation activities listed in Annex I for which it is the aircraft operator.’;

| 3. | Annex V shall be amended as follows:






  (a) | the following title shall be inserted after the title of the Annex: |
| --- | --- | --- |

3.

Annex V shall be amended as follows:

(a)

the following title shall be inserted after the title of the Annex:

| (b) | the following part shall be added:
  ‘PART B — VERIFICATION OF EMISSIONS FROM AVIATION ACTIVITIES






  13. | The general principles and methodology set out in this Annex shall apply to the verification of reports of emissions from flights falling within an aviation activity listed in Annex I.
  For this purpose:






  (a) | in paragraph 3, the reference to operator shall be read as if it were a reference to an aircraft operator, and in point (c) of that paragraph the reference to installation shall be read as if it were a reference to the aircraft used to perform the aviation activities covered by the report; |
| --- | --- | --- | --- |

(b)

the following part shall be added:

‘PART B — VERIFICATION OF EMISSIONS FROM AVIATION ACTIVITIES

13.

The general principles and methodology set out in this Annex shall apply to the verification of reports of emissions from flights falling within an aviation activity listed in Annex I.

For this purpose:

(a)

in paragraph 3, the reference to operator shall be read as if it were a reference to an aircraft operator, and in point (c) of that paragraph the reference to installation shall be read as if it were a reference to the aircraft used to perform the aviation activities covered by the report;

| (b) | in paragraph 5, the reference to installation shall be read as if it were a reference to the aircraft operator; |
| --- | --- |

(b)

in paragraph 5, the reference to installation shall be read as if it were a reference to the aircraft operator;

| (c) | in paragraph 6 the reference to activities carried out in the installation shall be read as a reference to aviation activities covered by the report carried out by the aircraft operator; |
| --- | --- |

(c)

in paragraph 6 the reference to activities carried out in the installation shall be read as a reference to aviation activities covered by the report carried out by the aircraft operator;

| (d) | in paragraph 7 the reference to the site of the installation shall be read as if it were a reference to the sites used by the aircraft operator to perform the aviation activities covered by the report; |
| --- | --- |

(d)

in paragraph 7 the reference to the site of the installation shall be read as if it were a reference to the sites used by the aircraft operator to perform the aviation activities covered by the report;

| (e) | in paragraphs 8 and 9 the references to sources of emissions in the installation shall be read as if they were a reference to the aircraft for which the aircraft operator is responsible; and |
| --- | --- |

(e)

in paragraphs 8 and 9 the references to sources of emissions in the installation shall be read as if they were a reference to the aircraft for which the aircraft operator is responsible; and

| (f) | in paragraphs 10 and 12 the references to operator shall be read as if they were a reference to an aircraft operator. |
| --- | --- |

(f)

in paragraphs 10 and 12 the references to operator shall be read as if they were a reference to an aircraft operator.

Additional provisions for the verification of aviation emission reports

| 14. | The verifier shall in particular ascertain that:






  (a) | all flights falling within an aviation activity listed in Annex I have been taken into account. In this task the verifier shall be assisted by timetable data and other data on the aircraft operator's traffic including data from Eurocontrol requested by that operator; |
| --- | --- | --- |

14.

The verifier shall in particular ascertain that:

(a)

all flights falling within an aviation activity listed in Annex I have been taken into account. In this task the verifier shall be assisted by timetable data and other data on the aircraft operator's traffic including data from Eurocontrol requested by that operator;

| (b) | there is overall consistency between aggregated fuel consumption data and data on fuel purchased or otherwise supplied to the aircraft performing the aviation activity. |
| --- | --- |

(b)

there is overall consistency between aggregated fuel consumption data and data on fuel purchased or otherwise supplied to the aircraft performing the aviation activity.

Additional provisions for the verification of tonne-kilometre data submitted for the purposes of Articles 3e and 3f

| 15. | The general principles and methodology for verifying emissions reports under Article 14(3) as set out in this Annex shall, where applicable, also apply correspondingly to the verification of aviation tonne-kilometre data. |
| --- | --- |

15.

The general principles and methodology for verifying emissions reports under Article 14(3) as set out in this Annex shall, where applicable, also apply correspondingly to the verification of aviation tonne-kilometre data.

| 16. | The verifier shall in particular ascertain that only flights actually performed and falling within an aviation activity listed in Annex I for which the aircraft operator is responsible have been taken into account in that operator's application under Articles 3e(1) and 3f(2). In this task the verifier shall be assisted by data on the aircraft operator's traffic including data from Eurocontrol requested by that operator. In addition, the verifier shall ascertain that the payload reported by the aircraft operator corresponds to records on payloads kept by that operator for safety purposes.’. |
| --- | --- |

16.

The verifier shall in particular ascertain that only flights actually performed and falling within an aviation activity listed in Annex I for which the aircraft operator is responsible have been taken into account in that operator's application under Articles 3e(1) and 3f(2). In this task the verifier shall be assisted by data on the aircraft operator's traffic including data from Eurocontrol requested by that operator. In addition, the verifier shall ascertain that the payload reported by the aircraft operator corresponds to records on payloads kept by that operator for safety purposes.’.

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STATEMENT OF THE COUNCIL'S REASONS

I.   INTRODUCTION

In December 2006, the Commission adopted its proposal (1) for a Directive of the European Parliament and of the Council amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community. This proposal was transmitted to the Council on 22 December 2006.

The European Parliament adopted its first-reading opinion on 13 November 2007.

The Economic and Social Committee adopted its opinion on 30 May 2007 (2).

The Committee of the Regions adopted its opinion on 10 October 2007 (3).

The Council adopted its Common Position on 18 April 2008.

II.   OBJECTIVE

The main objective of the proposed Directive is to reduce the climate change impact attributable to aviation, in view of the growing emissions from the aviation sector, namely by including aviation activities in the general Community scheme for emissions trading (ETS).

The proposal takes the form of an amendment to Directive 2003/87/EC (ETS Directive).

III.   ANALYSIS OF THE COMMON POSITION

General

The Common Position incorporates a number of the European Parliament's first-reading amendments, either verbatim, in part or in spirit. These improve or clarify the text of the proposed Directive. However, other amendments are not reflected in the Common Position because the Council agreed that they were either unnecessary and/or impracticable, being insufficiently supported by current scientific knowledge and entailing increased and non-commensurate administrative costs for their implementation.

The Common Position also includes a number of changes other than those envisaged in the European Parliament's first-reading opinion as, in a number of cases, provisions from the original Commission proposal have been supplemented with new elements or entirely redrafted, with some completely new provisions inserted.

In addition, a number of drafting changes merely seek to clarify the text or to ensure the overall coherence of the Directive.

Specific

(1)   Start date and scope of the scheme

The Council, agreeing with the European Parliament, has rejected the two-stage approach proposed by the Commission and has opted for a single starting date for all flights to be included in the scheme. This was deemed necessary to ensure the scheme's enhanced environmental impact whilst minimising distortion of competition. However, the Council, contrary to the Commission and the European Parliament, which both suggested 2011 as the start year, decided that delaying the scheme for one year, i.e. 2012, would be reasonable in view of the procedural steps involved in the adoption of the legislation, the complexity of the scheme and the need to provide for a number of implementing measures.

(2)   Allocation

The Council, very much like the European Parliament, considers the issue of allocation of allowances of central importance for the functioning of the scheme. In this respect, the Council has introduced a number of changes to the Commission proposal that would bring its contents closer to the spirit of a number of EP amendments, even though it did not incorporate them literally in the text of the Common Position.

Thus, whilst the Council has maintained the cap of 100 % of historical emissions, as in the Commission proposal, it has nonetheless pointed towards a possible future reduction as part of a review of the functioning of the Directive in relation to aviation activities, to be carried out by 2015 (Article 30(4)).

The Council agreed with the Commission's choice of allocation mechanism that would work partly by allocation of allowances free-of-charge based on a simple benchmark and partly by auctioning.

The Council has nevertheless slightly adjusted the benchmark by introducing modifications to the payload (which it increased to 110 kg per passenger and their checked baggage) and to the distance (with 95 km added to the greater circle distance) used to calculate the aviation activity (tonne kilometre) of each aircraft operator.

Concerning the levels of auctioning, the Council has rejected the Commission proposal to use a percentage corresponding to the average percentage proposed by the Member States that would include auctioning in their national allocation plans (NAPs), opting instead for a fixed percentage of 10 %. Additionally, the Council also introduced the explicit possibility for that percentage to be increased as part of the general review of the ETS Directive. Thus, although not incorporating EP amendment 74, the Common Position shares in fact the general spirit of that amendment as it acknowledges the desirability of providing for a (gradual) increase in the level of auctioning. The choice of an initially lower percentage of auctioning coupled with the possibility of future increases was considered preferable by the Council, as a more cautious approach ensuring, on the one hand, that aviation would not be treated significantly differently from other sectors falling within the ETS, whilst providing, on the other hand, for better adaptation to the overall functioning of the Community scheme.

On the use of the proceeds generated from auctioning, the Council adopts a slightly modified position with regard to both Commission and European Parliament. According to the current wording of Article 3d(4), it is for Member States to decide how these revenues are to be used. Nevertheless, Article 3d(4) provides that these proceeds should be used to tackle climate change both in the EU and in third countries and to cover the administrative costs of running the scheme. This modification seeks to ensure respect of the overriding constitutional and/or budgetary principles in the domestic legal orders of a number of Member States.

One of the major new elements that the Council has introduced to the Commission proposal relates to the creation of a special reserve for new entrants or fast-growing aircraft operators (i.e. operators that can demonstrate a growth rate of 18 % annually in the years following the base year used for the allocation of allowances). According to Article 3f, a set percentage (3 %) of allowances would be set aside to be distributed to eligible aircraft operators on the basis of a benchmark system similar to the system used for the initial allocation. The introduction of such a provision would ensure that new aircraft operators or aircraft operators in Member States with initially very low (but currently increasing) mobility rates would not be penalised by the scheme. The Council has counterbalanced any possible market distortions by making the distribution of allowances under the special reserve a one-off, alongside a provision that the resulting annual allocation per tonne-kilometre to eligible aircraft operators shall not be greater than the annual allocation per tonne-kilometre to aircraft operators under the main allocation (Article 3f(6)). Thus, the Council is in fact moving in the same direction as EP amendments 22, 28 and 33. Nevertheless, the functioning of the special reserve as envisaged in the Common Position would entail lower administrative costs and would not introduce significant distortions in the market.

(3)   Exemptions

The Council has refined further a number of exemptions from the scheme, taking into consideration the corresponding EP amendments (i.e. amendments 51, 52, 53, 70 and 79). Thus, it has opted not to exclude flights by EU Heads of State from the scheme, but has chosen to include exemptions for flights related to search and rescue, fire-fighting flights, humanitarian flights and emergency medical service flights. Furthermore, flights performed exclusively for the purpose of checking, testing or certifying aircraft or equipment, whether airborne or ground-based, are also excluded.

The Common Position has introduced an additional exemption from the scheme, namely a ‘de minimis’ clause entailing the exclusion of flights performed by a commercial air transport operator operating, for three consecutive four-month periods, fewer than 243 flights per period. The Council has coupled this exemption with a corresponding definition of ‘commercial air transport operator’ and a recital aiming to ensure that operators with very low traffic levels, including many operators from developing countries, would not be faced with disproportionate administrative costs. Thus, a strong political signal is sent to developing countries, whilst at the same time red tape and the general administrative burdens associated with the administering of the scheme are reduced. The possible adverse effects on the market are taken into account by opting for a neutral criterion for the exclusion, based on ‘pure’ activity.

The Council, very much like the European Parliament, has also taken into consideration the special needs of outermost regions and the particular status of flights performed under public service obligations (PSOs). The Common Position excludes from the scheme flights performed in the framework of public service obligations on routes within outermost regions or on routes where the capacity offered does not exceed 30 000 seats per year, and provides also for the corresponding recital. In this respect, therefore, it goes beyond EP amendment 78.

(4)   Other issues

A new article is inserted (Article 3g) imposing on Member States an additional obligation to ensure that aircraft operators submit to the relevant competent authority monitoring and reporting plans setting out measures to monitor and report emissions and tonne-kilometre data for the purpose of applying for allowances to be issued.

A number of new paragraphs are added to the enforcement article of the ETS Directive (Article 16), providing for the possibility for an administering Member State to request the Commission to impose an operating ban at Community level on an aircraft operator that fails to comply with the requirements of the Directive. Whilst the imposition of an operating ban is viewed as an enforcement measure of last resort, its inclusion was considered necessary, in order to guarantee the full compliance of aircraft operators with the scheme, a matter of utmost importance to the Council.

Furthermore, the Council has modified the Commission proposal as regards the conversion of allowances and their subsequent use towards international commitments, opting for a ‘semi-open’ scheme and deleting the provision from the Commission's proposal that would have enabled aircraft operators to convert their allowances into allowances that can be used by other operators. In recognition of the fact that domestic (and not international) aviation is part of Member State's commitments for the first commitment period under the Kyoto Protocol, a new paragraph is added to current Article 19 of the ETS Directive providing for the Regulation on Registries to ensure that allowances, CERs and ERUs are only transferred to Member States' retirement accounts for the first commitment period under the Kyoto Protocol if they correspond to emissions included in the national totals of Member State's national inventories for that period.

The Council has also substantially amended Article 25a, which now seeks to clarify the various institutional procedures available to the Commission for adapting, adjusting or amending the Directive following consultation or conclusion of new agreements with third countries. The importance of seeking a global solution to the issue of reducing emissions from aviation activities is emphasised, as is the need to seek the optimal interaction between the Community scheme and equivalent schemes from third countries. In this respect, even though the Council chose not to incorporate verbatim the corresponding EP amendment (amendment 49), the spirit of the Common Position follows very closely its rationale.

Finally, a number of points are added to the current review clause of the ETS Directive (Article 30), to serve as a ‘check-list’ for reviewing the functioning of the Directive in relation to aviation activities and for addressing any problems that might be bound to arise from the inclusion of these activities in the general ETS.

IV.   CONCLUSION

The Council believes that the Common Position represents a balanced package of measures that would contribute to reducing aviation emissions in a manner consistent with the policies and objectives of the EU, as expressed also within the UNFCCC, whilst ensuring that the scheme is applied to all aircraft operators without distinction as to nationality and, therefore, that the inclusion of aviation in the Community ETS should not lead to distortions of competition.

The Council looks forward to constructive discussions with the European Parliament with a view to the early adoption of the Directive.

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(1)  Doc. 5154/07 — COM(2006) 818 final.

(2)  OJ C 206, 27.7.2007, p. 47.

(3)  OJ C 305, 15.12.2007, p. 15.

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