# L_2022172EN.01002101.xml

| 29.6.2022 | EN | Official Journal of the European Union | L 172/21 |
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29.6.2022

EN

Official Journal of the European Union

L 172/21

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COMMISSION IMPLEMENTING DECISION (EU) 2022/1028

of 27 June 2022

amending Decision (EU) 2021/355 as regards certain installations in Denmark, France and Sweden and included in the list of installations covered by the emissions trading system of the Union laid down in Directive 2003/87/EC

(notified under document C(2022) 4289)

(Text with EEA relevance)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a system for greenhouse gas emission allowance trading within the Union and amending Council Directive 96/61/EC (1), and in particular Article 11 thereof,

Whereas:

| (1) | Further to the submission by Member States of their National Implementation Measures (NIMs), the Commission adopted Decision (EU) 2021/355 (2) on national implementation measures for the transitional free allocation of greenhouse gas emission allowances. That Decision rejects the inscription of certain installations and their corresponding data on the lists of installations covered by Directive 2003/87/EC, thus excluding them from the scope of the emissions trading system of the Union (EU ETS). |
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(1)

Further to the submission by Member States of their National Implementation Measures (NIMs), the Commission adopted Decision (EU) 2021/355 (2) on national implementation measures for the transitional free allocation of greenhouse gas emission allowances. That Decision rejects the inscription of certain installations and their corresponding data on the lists of installations covered by Directive 2003/87/EC, thus excluding them from the scope of the emissions trading system of the Union (EU ETS).

| (2) | Installations exclusively using biomass were excluded from the EU ETS, in line with paragraph 1 of Annex I to Directive 2003/87/EC. That provision was introduced in the ETS Directive by Directive 2009/29/EC of the European Parliament and of the Council (3), and since its application on 1 January 2013, it determined a new scope for the EU ETS. Therefore, the inscription of the installations that used biomass exclusively for all the years of the baseline period is to be rejected despite being listed in accordance with Article 11(1) of Directive 2003/87/EC. |
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(2)

Installations exclusively using biomass were excluded from the EU ETS, in line with paragraph 1 of Annex I to Directive 2003/87/EC. That provision was introduced in the ETS Directive by Directive 2009/29/EC of the European Parliament and of the Council (3), and since its application on 1 January 2013, it determined a new scope for the EU ETS. Therefore, the inscription of the installations that used biomass exclusively for all the years of the baseline period is to be rejected despite being listed in accordance with Article 11(1) of Directive 2003/87/EC.

| (3) | The Commission was informed that Sweden had erroneously included in its NIMs the installation SE-207651. That installation uses biomass exclusively and for that reason should have been excluded from the scope of the EU ETS. |
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(3)

The Commission was informed that Sweden had erroneously included in its NIMs the installation SE-207651. That installation uses biomass exclusively and for that reason should have been excluded from the scope of the EU ETS.

| (4) | Following a query from the Commission, Denmark confirmed that installations DK-65, DK-66 and DK-135 had no fossil emissions during the baseline period 2014 – 2018. Those installations use biomass exclusively and should also have been excluded from the scope of the EU ETS. |
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(4)

Following a query from the Commission, Denmark confirmed that installations DK-65, DK-66 and DK-135 had no fossil emissions during the baseline period 2014 – 2018. Those installations use biomass exclusively and should also have been excluded from the scope of the EU ETS.

| (5) | It is therefore appropriate to reject the inscription of the installations DK-65, DK-66, DK-135 and SE-207651 on the lists of installations covered by Directive 2003/87/EC for all the years of the baseline period including when they were listed in accordance with Article 11(1) of Directive 2003/87/EC. |
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(5)

It is therefore appropriate to reject the inscription of the installations DK-65, DK-66, DK-135 and SE-207651 on the lists of installations covered by Directive 2003/87/EC for all the years of the baseline period including when they were listed in accordance with Article 11(1) of Directive 2003/87/EC.

| (6) | Following a request for clarification from the Commission, France informed the Commission that two installations, FR-206164 and FR-206032, only produce polymers. Both installations have zero direct CO2 emissions because they import the heat needed for the production from another EU ETS installation. In the judgment in Case C-577/16 (4), the Court of Justice held that an installation for the production of polymers which obtains the heat needed for that production from a third-party installation does not fall within the scope of the EU ETS, since it does not generate direct CO2 emissions. The inscription of those installations on the lists of installations covered by Directive 2003/87/EC should therefore be rejected. |
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(6)

Following a request for clarification from the Commission, France informed the Commission that two installations, FR-206164 and FR-206032, only produce polymers. Both installations have zero direct CO2 emissions because they import the heat needed for the production from another EU ETS installation. In the judgment in Case C-577/16 (4), the Court of Justice held that an installation for the production of polymers which obtains the heat needed for that production from a third-party installation does not fall within the scope of the EU ETS, since it does not generate direct CO2 emissions. The inscription of those installations on the lists of installations covered by Directive 2003/87/EC should therefore be rejected.

| (7) | Decision (EU) 2021/355 should therefore be amended accordingly, |
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(7)

Decision (EU) 2021/355 should therefore be amended accordingly,

HAS ADOPTED THIS DECISION:

Article 1

Commission Decision (EU) 2021/355 is amended as follows:

| (1) | in Article 1, the following paragraph 6 is added:

  ‘6.   The inscription of the installations listed in Annex IV to this Decision included on the lists of installations covered by Directive 2003/87/EC and the corresponding free allocation data to those installations, submitted to the Commission pursuant to Article 11(1) of that Directive, are rejected.’; |
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(1)

in Article 1, the following paragraph 6 is added:

‘6.   The inscription of the installations listed in Annex IV to this Decision included on the lists of installations covered by Directive 2003/87/EC and the corresponding free allocation data to those installations, submitted to the Commission pursuant to Article 11(1) of that Directive, are rejected.’;

| (2) | Annex I is replaced by the text in Annex I to this Decision; |
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(2)

Annex I is replaced by the text in Annex I to this Decision;

| (3) | The text set out in Annex II to this Decision is added as Annex IV. |
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(3)

The text set out in Annex II to this Decision is added as Annex IV.

Article 2

This Decision is addressed to the Member States.

Done at Brussels, 27 June 2022.

For the Commission

Frans TIMMERMANS

Executive Vice-President

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(1)  
  OJ L 275, 25.10.2003, p. 32.

1

(2)  Commission Decision (EU) 2021/355 of 25 February 2021 concerning national implementation measures for the transitional free allocation of greenhouse gas emission allowances in accordance with Article 11(3) of Directive 2003/87/EC of the European Parliament and of the Council (OJ L 68, 26.2.2021, p. 221).

2

(3)  Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 amending Directive 2003/87/EC so as to improve and extend the greenhouse gas emission allowance trading scheme of the Community (OJ L 140, 5.6.2009, p. 63).

3

(4)  Judgment of the Court of Justice of 28 February 2018, Trinseo Deutschland Anlagengesellschaft mbH v Bundesrepublik Deutschland, C-577/16, ECLI:EU:C:2018:127.

4

Trinseo Deutschland Anlagengesellschaft mbH

Bundesrepublik Deutschland

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ANNEX I

‘ANNEX I

Installations using exclusively biomass

Installations identifier in the national implementation measures lists

| DK000000000000065 | DK000000000000066 | DK000000000000135 | |
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| FI000000000000645 | FI000000000207696 | | |
| SE000000000000031
  SE000000000000086
  SE000000000000169
  SE000000000000211
  SE000000000000320
  SE000000000000523
  SE000000000000583
  SE000000000000686
  SE000000000000789
  SE000000000000845
  SE000000000205887
  SE000000000209930
  SE000000000000779 | SE000000000000064
  SE000000000000088
  SE000000000000186
  SE000000000000249
  SE000000000000324
  SE000000000000543
  SE000000000000629
  SE000000000000687
  SE000000000000798
  SE000000000000847
  SE000000000206192
  SE000000000211058
  SE000000000207651 | SE000000000000073
  SE000000000000099
  SE000000000000199
  SE000000000000261
  SE000000000000382
  SE000000000000547
  SE000000000000659
  SE000000000000705
  SE000000000000830
  SE000000000202297
  SE000000000208282
  SE000000000000153 | SE000000000000074
  SE000000000000102
  SE000000000000205
  SE000000000000319
  SE000000000000468
  SE000000000000565
  SE000000000000681
  SE000000000000785
  SE000000000000838
  SE000000000205800
  SE000000000209062
  SE000000000000231 |

DK000000000000065

DK000000000000066

DK000000000000135

FI000000000000645

FI000000000207696

SE000000000000031

SE000000000000086

SE000000000000169

SE000000000000211

SE000000000000320

SE000000000000523

SE000000000000583

SE000000000000686

SE000000000000789

SE000000000000845

SE000000000205887

SE000000000209930

SE000000000000779

SE000000000000064

SE000000000000088

SE000000000000186

SE000000000000249

SE000000000000324

SE000000000000543

SE000000000000629

SE000000000000687

SE000000000000798

SE000000000000847

SE000000000206192

SE000000000211058

SE000000000207651

SE000000000000073

SE000000000000099

SE000000000000199

SE000000000000261

SE000000000000382

SE000000000000547

SE000000000000659

SE000000000000705

SE000000000000830

SE000000000202297

SE000000000208282

SE000000000000153

SE000000000000074

SE000000000000102

SE000000000000205

SE000000000000319

SE000000000000468

SE000000000000565

SE000000000000681

SE000000000000785

SE000000000000838

SE000000000205800

SE000000000209062

SE000000000000231

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ANNEX II

‘ANNEX IV

Installations producing polymers and importing heat, with zero direct CO2 emissions

Installations identifier in the national implementation measures list

| FR000000000206164 |
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| FR000000000206032 |

FR000000000206164

FR000000000206032

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