EN Official Journal of the European Union L 1/10

COMMISSION DECISION

of 24 December 2009

determining, pursuant to Directive 2003/87/EC of the European Parliament and of the Council, a list of sectors and subsectors which are deemed to be exposed to a significant risk of carbon leakage

(notified under document C(2009) 10251)

(Text with EEA relevance)

(2010/2/EU)

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 scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (1), and in particular Article 10a(13) thereof,

Whereas:

(1) Directive 2003/87/EC, as amended by Directive 2009/29/EC of the European Parliament and of the Council (2), provides that auctioning should be the basic principle for allocation of greenhouse gas emission allowances.

(2) The Union supports an ambitious international agreement on climate change that aims to limit the global temperature increase to 2 °C. In the event that other developed countries and other major emitters of greenhouse gases do not participate in that international agreement, this could lead to an increase in greenhouse gas emissions in third countries where industry would not be subject to comparable carbon constraints (‘carbon leakage’) and undermine the environmental integrity and benefit of actions by the Union. To address the risk of carbon leakage, Directive 2003/87/EC provides that, subject to the outcome of the international negotiations, the Union should allocate allowances free of charge at 100 % of the quantity determined in accordance with the measures referred to in Article 10a(1) of Directive 2003/87/EC to sectors or sub-sectors deemed to be exposed to a significant risk of carbon leakage.

(3) By 31 December 2009 and every five years thereafter, the Commission shall determine a list of the sectors or subsectors deemed to be exposed to a significant risk of carbon leakage, hereinafter ‘list of sectors and subsectors’, on the basis of the criteria referred to in paragraphs 14 to 17 of Article 10a of Directive 2003/87/EC.

(4) According to Article 10a(14) of Directive 2003/87/EC, in order to determine the sectors or subsectors deemed to be exposed to a significant risk of carbon leakage the Commission shall assess, at Union level, the extent to which it is possible for the sector or subsector concerned, at the relevant level of disaggregation, to pass on the direct cost of the required allowances and the indirect costs from higher electricity prices resulting from the implementation of Directive 2003/87/EC into product prices without significant loss of market share to less carbon efficient installations outside the Union. These assessments shall be based on an average carbon price according to the Commission’s impact assessment accompanying the package of implementation measures for the Union’s objectives on climate change and renewable energy for 2020 and, if available, trade, production and value added data from the three most recent years for each sector or subsector.

(5) In accordance with Article 10a(15) of Directive 2003/87/EC, a sector or subsector shall be deemed to be exposed to a significant risk of carbon leakage if the sum of direct and indirect additional costs induced by the implementation of that Directive would lead to a substantial increase of production costs, calculated as a proportion of the gross value added, of at least 5 %; and the intensity of trade with third countries, defined as the ratio between the total value of exports to third countries plus the value of imports from third countries and the total market size for the Union (annual turnover plus total imports from third countries), is above 10 %. In accordance with Article 10a(16) of Directive 2003/87/EC, a sector or subsector is also deemed to be exposed to a significant risk of carbon leakage if the sum of direct and indirect additional costs induced by the implementation of Directive 2003/87/EC would lead to a particularly high increase of production costs, calculated as a proportion of the gross value added, of at least 30 %, or the intensity of trade with third countries, defined as the ratio between the total value of exports to third countries plus the value of imports from third countries and the total market size for the Union (annual turnover plus total imports from third countries), is above 30 %.

(6) In order to establish the list of sectors and subsectors which are deemed to be exposed to a significant risk of carbon leakage, the risk of carbon leakage should be assessed, as a starting point, at a 3-digit level (NACE-3 level) or, where appropriate and where the data is available, at a 4-digit level (NACE-4 level). Sectors and subsectors should be included in the list of sectors and subsectors using the most accurate NACE description. Some sectors not found to be exposed to a significant risk of carbon leakage at the NACE 4-level were disaggregated and a number of corresponding sub-sectors, for which certain characteristics led to a significantly different impact from the rest of the sector, were assessed.

(7) Information necessary for making the determination on the basis of the criteria referred to in paragraphs 14 to 17 of Article 10a of Directive 2003/87/EC was collected, as of December 2008, from Member States, Eurostat, publicly and commercially available sources and industry associations. Information not provided by Member States or any other official sources has been verified. Confidential data processed by Eurostat have also been used.

(8) The data in the ‘Community Independent Transaction Log’ (CITL) are considered to be the most accurate, reliable and transparent estimation of CO2 emissions for sectors, the activities of which were in Annex I to Directive 2003/87/EC, prior to amendment by Directive 2009/29/EC, and have therefore been used as the main source to calculate the direct cost of the allowances for those sectors.

(9) As regards process emissions of new activities and greenhouse gases included in Annex I to Directive 2003/87/EC, as amended by Directive 2009/29/EC, for some sectors with a substantial number of small installations or installations which were excluded in periods 2005-2007 and 2008-2012 of the emissions trading scheme, or for which no CITL data was available, or where emissions could not be attributed at NACE-4 level, data have been collected from Member States and from the greenhouse gas inventory of the Union for the relevant years. As regards the assessment of electricity consumption used for the calculation of indirect cost from higher electricity prices, no data is available from Eurostat, and the data collected directly from Member States can be considered as the most reliable data available. Regarding the estimation of gross value added, data from the Eurostat Structural Business Statistics have been used as it is considered to be the most accurate source. The data reported by Eurostat in the Comext database on trade between Member States and with third countries are considered as the most reliable data on the total values of exports to third countries and imports from third countries, as well as on the total annual turnover in the Union.

(10) The assessments were based on the average carbon price according to the impact assessment of the Commission accompanying the package of implementation measures for objectives of the Union on climate change and renewable energy for 2020 (3). The resulting carbon price from the most relevant scenario including Joint Implementation and Clean Development Mechanism credits is EUR 30 per tonne of CO2 equivalent.

(11) In order to assess the direct additional costs induced by the implementation of Directive 2003/87/EC, it is necessary to take into account the amount of allowances that the sector would be required to purchase if not deemed to be exposed to significant risk of carbon leakage. In accordance with Article 10a(11) of that Directive the amount of allowances allocated free of charge to such sectors in 2013 is to be 80 % of the quantity determined in accordance with Article 10a(1) and this amount is to decrease each year by equal amounts resulting in 30 % free allocation in 2020 with a view to reaching 0 % free allocation in 2027. The starting point for the benchmarks determined under Article 10a(1) is the average performance of the 10 % most efficient installations in the sector or subsector in the Union in the years 2007-2008 and they shall take into account the most efficient techniques, substitutes and alternative production processes.

(12) The benchmarks to be determined in accordance with Article 10a(1) of Directive 2003/87/EC are to be adopted only by the end of 2010. Assessment of direct costs on the basis of those benchmarks can therefore only be taken into account on the occasion of revision of the list of sectors and subsectors. It is thus necessary to estimate the amount of allowances which need to be allocated free of charge in order to determine the list of sectors and subsectors. These estimates have to be made at Union level and for the years 2013 and 2014. The best estimate, for the purposes of this Decision and reflecting the stringent requirements for benchmarks and the application of the linear reduction factor, is that 75 % of allowances for non-exposed sectors will need to be purchased in 2013 and 2014.

(13) The assessment of indirect cost was based on the Union average emission factor for electricity of 0,465 tonnes of CO2 per MWh according to the Model-based Analysis of the 2008 EU Policy Package on Climate Change and Renewables (4) used for the impact assessment of the Commission accompanying the package of implementation measures for objectives of the Union on climate change and renewable energy for 2020. The use of an average Union value is appropriate as it is consistent with the requirement to perform the assessment at Union level and as it reflects the actual emissions linked to the electricity production in the Union.

(14) According to Article 10a(17) of Directive 2003/87/EC, the list may be supplemented after completion of a qualitative assessment, where the relevant data is available, taking into account the extent to which it is possible for individual installations in the sector or subsector concerned to reduce emission levels or electricity consumption, including, as appropriate, the increase in production costs that the related investment may entail, for instance on the basis of the most efficient techniques; current and projected market characteristics, including when trade exposure or direct and indirect cost increase rates are close to one of the thresholds; and profit margins as a potential indicator of long-run investment or relocation decisions.

(15) A qualitative assessment has been carried out on a number of sectors and subsectors that were not deemed to be exposed to carbon leakage based on the quantitative criteria set out in paragraphs 14 and 15 of Article 10a of Directive 2003/87/EC. The qualitative assessment was mainly applied to sectors not sufficiently represented in the quantitative assessment, and to sectors considered to be borderline cases or for which statistics were absent or of poor quality, and for which Member States or industry representatives had requested a qualitative analysis, based on plausible reasoning and substantiated requests. Following that assessment, some of the sectors analysed should be deemed as exposed to a significant risk of carbon leakage. The additional sectors and subsectors that have been added to the list are specified separately in the third section of the Annex to this Decision.

(16) Other sectors and subsectors, which, under the given time constraints, have not been completely analysed on this occasion or for which data quality and availability was limited, such as for manufacture of bricks and roof tiles, will be reassessed as soon as possible according to Article 10a(13) of the Directive and — subject to the outcome of the analysis — added to the list.

(17) A qualitative assessment has been carried out on the sector of ‘Finishing of textiles’ (NACE code 1730), primarily due to the fact that no official trade data at Union level is available to assess trade intensity and that all other textile sectors are highly trade intensive. The assessment demonstrated increased international competitive pressure, significant drop in production in the Union over the last years and negative or only very modest profit margins for the years evaluated, which limit the capacity of installations to invest and reduce emissions. Based on the combined impact of those factors, the sector should be deemed as exposed to a significant risk of carbon leakage.

(18) A qualitative assessment has been carried out on the sector of ‘Manufacture of veneer sheets; manufacture of plywood, laminated board, particle board, fibre board and other panels and boards’ (NACE code 2020). The assessment demonstrated limited scope to reduce emissions without significant increase in costs, challenging market characteristics, such as high price sensitivity and increasing trend in imports from low cost manufacturing countries, and significant impact of additional costs due to implementation of Directive 2003/87/EC on the profit margins, limiting the capacity of installations to invest and reduce emissions. Based on the combined impact of those factors, the sector should be deemed as exposed to a significant risk of carbon leakage.

(19) A qualitative assessment has been carried out on the sector of ‘Manufacture of plastics in primary forms’ (NACE code 2416). With respect to current market characteristics, the assessment demonstrated a high level of integration with other parts of the chemical industry, which are deemed to be exposed to a significant risk of carbon leakage; prices set at the world market impeding unilateral price increases, and distortions of the world or Union market due to unfair commercial practices from producers in certain third countries. As regards the projected market characteristics, while already close to the 30 % trade intensity threshold, the sector experiences a strong increase in imports which will continue mainly due to large new investments in the Middle East. Based on the combined impact of those factors, the sector should be deemed as exposed to a significant risk of carbon leakage.

(20) A qualitative assessment has been carried out on the sector of ‘Casting of iron’ (NACE code 2751), primarily due to the fact that no official trade data at Union level are available to assess trade intensity, as the main casting products are split into different groups in the Eurostat Comext database. The assessment demonstrated limited abatement potential due to partly unavoidable process-related emissions and limited capacity to invest in abatement technologies due to significant impact of additional costs resulting from the implementation of Directive 2003/87/EC on profit margins. With respect to market characteristics, the market concentration is low, while a high level of concentration exists in the client sectors. This implies limited potential for the sector to pass through additional costs. Existing trade data from alternative sources also indicate that the casting production is increasingly traded internationally. Based on the combined impact of those factors, the sector should be deemed as exposed to a significant risk of carbon leakage.

(21) A qualitative assessment has been carried out on the sector of ‘Casting of light metals’ (NACE code 2753), primarily due to the fact that no official trade data at Union level are available to assess trade intensity, as the main casting products are split into different groups in the Eurostat Comext database. With respect to market characteristics, the assessment demonstrated low market concentration and high dependence on demand from one concentrated client sector. This implies limited potential for the sector to pass through additional costs. Moreover, the sector experienced losses or only very modest margins in the evaluated years, which adversely affects the capacity to investment in abatement technologies, and which could be further exacerbated by the additional costs. Existing trade data from alternative sources also indicate that the casting production is increasingly traded internationally. Based on the combined impact of those factors, the sector should be deemed as exposed to a significant risk of carbon leakage.

(22) When determining the list of sectors and subsectors, account should be taken, where the relevant data is available, of the extent to which third countries, representing a decisive share of global production in sectors or subsectors deemed to be at risk of carbon leakage, firmly commit to reducing greenhouse gas emissions in those sectors or subsectors to an extent comparable to that of the Union and within the same time frame, and the extent to which the carbon efficiency of installations located in those countries is comparable to that of the Union. At the current stage, only Norway, Iceland and Switzerland have made such commitments, and they do not together represent a decisive share of global production in the sectors or subsectors which are deemed to be at significant risk of carbon leakage. As regards the carbon efficiency, the relevant data necessary for the assessment is not available due to incomparability of statistical definitions and general lack of global data at the required level of disaggregation and sectoral detail. Therefore, the criteria set out in Article 10a(18) of Directive 2003/87/EC had no effect on the list of sectors and subsectors.

(23) The assessment on which the list of sectors and subsectors is based has covered all NACE-codes from 1010 up to and including 3720, thus covering mining, quarrying and manufacturing sectors. Certain other industrial sectors, falling outside this range of NACE codes, but whose stationary installations are potentially covered by the EU ETS provisions on carbon leakage, will be analysed by the Commission during 2010. If any such industrial sector satisfies the criteria in paragraphs 14 to 17 of Article 10a of Directive 2003/87/EC it will be added to the list in the annual update.

(24) This list applies for the years 2013-2014, subject to the outcome of the international negotiations.

(25) Various stakeholders, including Member States, industry associations, environmental non-governmental organisations and academics have been consulted on the list of sectors and subsectors and information on the process was made available on the website of the Commission (5).

(26) The measures provided for in this Decision are in accordance with the opinion of the Climate Change Committee,

HAS ADOPTED THIS DECISION:

Article 1

The sectors and subsectors listed in the Annex shall be deemed to be exposed to a significant risk of carbon leakage.

Certain other industrial sectors, falling outside range of the assessed NACE codes (from 1010 to including 3720), but potentially covered by the EU ETS provisions on carbon leakage, will be analysed by the Commission during 2010. If any such industrial sector satisfies the criteria in paragraphs 14 to 17 of Article 10a of Directive 2003/87/EC it will be added to the list in the annual update.

Article 2

This Decision is addressed to the Member States.

Done at Brussels, 24 December 2009. For the Commission Stavros DIMAS Member of the Commission

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

(2) OJ L 140, 5.6.2009, p. 63.

(3) http://ec.europa.eu/energy/climate_actions/doc/2008_res_ia_en.pdf

(4) P. Capros et al., Model-based Analysis of the 2008 EU Policy Package on Climate Change and Renewables, Primes Model — E3MLab/NTUA, June 2008:

http://ec.europa.eu/environment/climat/pdf/climat_action/analysis.pdf

(5) http://ec.europa.eu/environment/climat/emission/carbon_en.htm