EN    EN EN 
EN    EN  EUROPEAN COMMISSION 
Brussels, 10.1.2011 
SEC(2010) 1632 final  
Proposal for a 
COUNCIL DECISION 
of 10.1.2011 
on the position to be taken by the Eu ropean Union in the EEA Joint Committee 
concerning an amendment to Annex XX (Env ironment) and Protocol 37 to the EEA 
Agreement 
EN 2   EN EXPLANATORY MEMORANDUM  
Incorporation of Directive 2008/101/EC amendi ng Directive 2003/87/EC so as to include 
aviation activities in the sche me for greenhouse gas emission  allowance trading into the 
EEA Agreement 
Relevant act: 
Directive 2008/101/EC of the Eu ropean Parliament and of th e Council of 19 November 2008 
amending Directive 2003/87/EC so as to incl ude aviation activities in the scheme for 
greenhouse gas emission allowance trading within the Community1. 
Relevant provisions: 
Articles 3c(4), 3d(4), 3e(2), 3f(4), 3e (3), 3f(5), 16, 18a (1) and (3)(b) and 18b.  
General remarks: 
The draft JCD proposes the incorporation of Directive 2008/101/EC into the EEA Agreement 
with a view to extending the aviation emissi on trading scheme to the whole EEA while 
respecting as far as possible the principles of the two-pillar structure of the Agreement. For 
the setting of the EEA-wide historical avia tion emissions, of the EEA total quantity of 
allowances as well as of the EEA-wide allowances to be auctioned, to be put into a special reserve and to be allo cated for free, the normal procedur es under the EEA Agreement should 
be followed. 
With regard to the benchmarks, the Comm ission decisions should include the EEA-wide 
benchmarks, which should be established in close cooperation with th e EFTA Surveillance 
Authority. The calculation and public ation of allocation of allowa nces to aircraft operators 
administered by the EFTA States based on those benchmarks will take place subsequent to the 
incorporation of the Commission deci sions into the EEA Agreement. 
This solution implies that the following decisi on process will have to take place in close 
cooperation between the Commission, the EFTA Surveillance Authority and the EEA EFTA 
States. This cooperation includes that the Contracting Parties fo resee special clauses in their 
respective decisions in the a pplication of Directive 2008/101/ EC, making reference to the 
corresponding decisions of the othe r Contracting Parties, in orde r to provide for a transparent 
ETS system in the EEA for al l aviation operators concerned. 
i) Article 3c(4) 
The Commission decides on the historical aviation emissions for the EU-27 (A) as foreseen in 
the Directive, thus covering flights within the EU, between EU Memb er States and third 
countries and between EU Member States and EEA EFTA States.  
The EFTA Surveillance Authority provides, ac cording to the input from Eurocontrol, the 
number of historical aviation emissions based on flights within the EEA EFTA territory and 
flights between the EEA EFTA St ates and third countries (B). 
                                                
 
1 OJ L 8, 13.1.2009, p. 3. 
EN 3   EN The EEA Joint Committee sets the EEA-wide historical aviation em issions by adopting a 
decision which foresees the incorporation of th e Commission decision with  the addition of the 
historical aviation emissions provided for th e EEA EFTA States, t hus adding numbers (A) 
and (B) together. 
An adaptation text clarifies that the normal procedures under the EEA  Agreement apply and 
that the additional numbers from the EEA EFTA States will be added by decision of the EEA 
Joint Committee, based on figures provided by the EFTA Surveillance Authority, which will 
do so in close cooperatio n with Eurocontrol. 
ii) Article 3e(3) 
Based on (A), the Commission decides on the num ber of allowances to  be allocated to 
operators for flights performed within the original EU scope of the scheme: 
– the total number of allowances, 
– number of allowances to be auctioned, 
– number of allowances in the special reserv e (this applies for the period beginning on 1 
January 2013 and subsequent periods), 
– number of free allowances. 
Based on (B), the EFTA Surveillance Authority will, in close cooperation with Eurocontrol, 
establish the increase in allowances related to the flights which are added to the scheme due to the extension of the scheme to the EEA EFTA  States in each of the following sets of 
allowances: 
– the total number of allowances, 
– number of allowances to be auctioned, 
– number of allowances in the special reserv e (this applies for the period beginning on 1 
January 2013 and subsequent periods), 
– number of free allowances. 
The EEA Joint Committee decides on the number of allowances to be allocated to operators 
administered by the EEA-30 by adding the EEA EFTA figures to the EU figures when 
incorporating the respective Commission decision into the EEA Agreement: 
– EEA-wide total number of allowances, 
– EEA-wide number of allowances to be auctioned, 
– EEA-wide number of allowances in the spec ial reserve (this applies for the period 
beginning on 1 January 2013 a nd subsequent periods), 
– EEA-wide number of free allowances (C). 
The Commission decides on the benchmarks for EEA -30 (also in the case of Article 3f(5)), 
thereby cooperating closely with the EFTA Su rveillance Authority during the process leading 
EN 4   EN up to the decision. The calculation and publication of allocation of allowances to aircraft 
operators administered by the EFTA States based on those benchmarks will take place 
subsequent to the incorporation of the Co mmission decisions into the EEA Agreement. 
A joint declaration reiterating the Contracting Parties’ commitment to ensure speedy adoption 
and entry into force of the EEA Joint Committ ee decision incorporatin g benchmark decisions 
of the Commission is foreseen in the draft JCD. 
iii) Article 3d(3) 
The number of allowances to be auctioned by each of the EEA-30 is proportionate to its share 
of the total attributed aviati on emissions for all EEA-30 in 2010. 
Justification and proposed solution for adaptations: 
No relevant aviation acti vities in Liechtenstein  
There are currently no aviation activities in Li echtenstein as defined in the Directive. An 
adaptation text clarifying this as well as stating that Liechtenstein will comply with the Directive when relevant aviation activities will take place on its territory is therefore suggested. 
Article 3d(4) – Earmarking of revenues:
 
Budget issues fall outside th e scope of the EEA Agreement.  Earmarking of revenues is 
therefore outside the scope of the Agreement. The EEA EFTA States are however, limited to 
the application of Directive 2008/101/EC, rea dy to submit to Article 3d(4), in order to 
guarantee a homogeneous application of the ETS  scheme in the field of aviation, which 
concerns operators from third countries as well.  In accordance with the Ar ticle it shall be for 
States to determine the use of revenues gene rated from auctioning of allowances. Revenues 
should be used to tackle climate change as sp ecified in the Article, and are deemed to be 
fulfilled if budget allocation to these purposes exceeds the relevant revenues generated. An 
adaptation text clarifying that this will not include any reporting obligations and a joint declaration reiterating that the incorporation of this provision into the EEA Agreement shall 
be without prejudice to the scope of the Agreement are foreseen in the draft JCD. 
Articles 3e(2) and 3f(4)
 
In order to comply with the tw o-pillar structure as far as pos sible, the EEA EFTA States will 
submit the applications received to the Commi ssion via the EFTA Surveillance Authority. An 
adaptation text to this end is foreseen. 
Article 16 – Operating ban:  
The EEA EFTA States suggest using the same a pproach as is foreseen with regard to the 
“Black list” in the field of ci vil aviation safety. In  that case the Commission adopts a ban for 
the territory of EU -27, which is extended to the EEA EF TA States by decision of the EEA 
Joint Committee incorporating the Commission act into the EEA Agreement. This being said, 
pending such incorporation, and in view of the ur gency of bans in the field of civil aviation 
safety, the EEA EFTA States have committed to  apply the ban simultaneously with the EU 
Member States.  
EN 5   EN In the case of Article 16, on th e other hand, the same urgency is  not present, and provisional 
application is not necessary. Therefore, the norma l procedures for incorp oration should apply. 
This implies that the Commission will adopt a ba n for the territory of EU-27, which will only 
become applicable to EEA-30 through decision of the EEA Joint Committee incorporating the Commission decision into the EEA Agreement. Ther e is no need to foresee an adaptation text 
stating that the Commission decision will not appl y to the EEA EFTA States before, as this is 
a general principle and follows fr om the 2-pillar structure.  
With regard to requests by the EEA EFTA Stat es in accordance with Article 16(5) and (10), 
an adaptation text is suggested foreseeing that such requests would be sent to the Commission 
via the EFTA Surveillance Authority. 
Article 18a(1):
 
The adaptation was proposed by the Commission and sets out some rules regarding the 
reallocation of aircraft oper ators to the EFTA States. 
Article 18a(3)(b):  
An adaptation text is foreseen to ensure that the Commission w ill publish a list concerning all 
operators falling under th e scope of the scheme, thus an EEA-wide list. 
Article 18b – Assistance from Eurocontro l or another relevant organisation:  
The EEA EFTA States and the EFTA Surveillance Authority should for the purposes of 
applying Directive 2008/101/EC be able to rely  on expertise of an organisation, like the 
Commission. An adaptation text is  therefore foreseen, stating that the EFTA Surveillance 
Authority may request the assistance of Eu rocontrol or another relevant organisation. 
EN 6   EN Proposal for a 
COUNCIL DECISION 
of 10.1.2011 
on the position to be taken by the Eu ropean Union in the EEA Joint Committee 
concerning an amendment to Annex XX (Environment) to the EEA Agreement 
THE COUNCIL OF THE EUROPEAN UNION, 
Having regard to the Treaty on the Functioning of the European Union, and in particular 
Articles 192 (1) and 218 (9) thereof, 
Having regard to Council Regulation (EC)  No 2894/94 of 28 November 1994 concerning 
arrangements for implementing the Agreement on the European Economic Area2, and in 
particular Article 1(3) thereof, 
Having regard to the proposal from the European Commission, 
Whereas: Annex XX to the Agreement on the European Econom ic Area, (hereinafter referred to as "the 
EEA Agreement") contains specific provision s and arrangements concerning environment. 
(1) It is appropriate to include Directive 2008/ 101/EC of the European Parliament and of 
the Council of 19 November 2008 amending Di rective 2003/87/EC so as to include 
aviation activities in the sc heme for greenhouse gas emissi on allowance tr ading within 
the Community
3, in the Agreement. 
(2) Annex XX to the EEA Agreement should therefore be amended accordingly. 
HAS ADOPTED THIS DECISION:  
Sole Article 
The position to be taken by the Union in the EEA Joint Committee on an envisaged 
amendment to Annex XX to the EEA Agreement is  laid down in the Annex to this Decision. 
Done at Brussels, 10.1.2011 
 For the Council 
 The President 
                                                 
2 OJ L 305, 30.11.1994, p. 6. 
3 OJ L 8, 13.1.2009, p. 3. 
EN 7   EN ANNEX  
Draft  
DECISION OF THE EEA JOINT COMMITTEE  
No 
of 
amending Annex XX (Environment) to the EEA Agreement 
THE EEA JOINT COMMITTEE, 
Having regard to the Agreement on the European  Economic Area, as amended by the Protocol 
adjusting the Agreement on the European Economic Area, hereinafter referred to as ‘the Agreement’, 
and in particular Article 98 thereof, 
Whereas: (1) Annex XX to the Agreement was amended by  Decision of the EEA Joint Committee No …/… 
of …
4. 
(2) Directive 2008/101/EC of the European Parliament and of the Council of 19 November 2008 
amending Directive 2003/87/EC so  as to include aviation ac tivities in th e scheme for 
greenhouse gas emission allowance trading within the Community5 is to be incorporated into 
the Agreement. 
(3) The decision making process will take place in close coop eration between the European 
Commission, the EFTA Surveillance Authority and the EFTA States. 
(4) The Contracting Parties have issued a Joint Declaration, emphasizing inte r alia that they will 
make every effort in order to ensure swift adoption and entry into force of an EEA Joint Committee decision incorporating each d ecision of the European Commission, 
HAS DECIDED AS FOLLOWS: 
Article 1 
Point 21al (Directive 2003/87/EC of the European Par liament and of the Council) of Annex XX to the 
Agreement shall be amended as follows: 
1. The following indent shall be added: 
‘- 32008 L 0101 : Directive 2008/101/EC of the European  Parliament and of the Council of 
19 November 2008 (OJ L 8, 13.1.2009, p. 3).’ 
2. The following shall be inserted after adaptation (b): 
                                                
 
4 OJ L … 
5 OJ L 8, 13.1.2009, p. 3. 
EN 8   EN ‘(ba) At the time of incorporation of the Directive, Liechtenstein does not have any 
aviation activities as defined in the Directive operated on its territory. 
Liechtenstein will comply with the Directiv e when relevant aviation activities take 
place on its territory. 
(bb) The following subparagraph shal l be added in Article 3c(4):  
 “The EEA Joint Committee shall, in accord ance with the procedures laid down in 
the Agreement and based on figures provide d by the EFTA Surv eillance Authority 
in cooperation with Euroc ontrol, decide on the EEA -wide historical aviation 
emissions by adding the relevant numbers concerning flights w ithin and between 
the territories of the EFTA States and f lights between the EFTA States and third 
countries to the Commission decision when  incorporating the la tter into the EEA 
Agreement.” 
(bc) In Article 3d(4), the seco nd subparagraph shall be deleted. 
(bd) The following subparagraph shall be added in Articles 3e (2) and 3f(4):  
“By the same date, the EFTA States sha ll submit applications received to the 
EFTA Surveillance Authority, which sh all promptly pass them on to the 
Commission.” 
(be) The following subparagraphs shall be added in Article 3e(3):  
 “The EEA Joint Committee shall, in accord ance with the procedures laid down in 
the Agreement and based on figures provide d by the EFTA Surv eillance Authority 
in cooperation with Eurocontrol, decide  on the EEA-wide nu mber for the total 
number of allowances, the number of allo wances to be auctioned, the number of 
allowances in the special reserve and th e number of free allowances, by adding the 
relevant numbers concerning flights with in and between the territories of the 
EFTA States and flights between the EF TA States and third countries to the 
Commission decision when incorporating the latter into the EEA Agreement.   The Commission shall decide on the EEA -wide benchmark. During the decision-
making process the Commission shall cooperate closely with the EFTA 
Surveillance Authority. The calculation an d publication by the EFTA States under 
Article 3e(4) shall take place subseque nt to the decision of the EEA Joint 
Committee incorporating the decision a dopted by the Commission into the EEA 
Agreement.” 
(bf) The following subparagraph shal l be added in Article 3f(5):  
 “The Commission shall d ecide on the EEA-wide benc hmark. During the decision-
making process the Commission shall cooperate closely with the EFTA 
Surveillance Authority. The calculation an d publication by the EFTA States under 
Article 3f(7) shall take pl ace subsequent to the d ecision of the EEA Joint 
Committee incorporating the decision a dopted by the Commission into the EEA 
Agreement.”’ 
3. The following shall be inserted after adaptation (i): 
EN 9   EN ‘(ia) The following paragraph shall be inserted after Article 16(12): 
“(13) The EFTA States shall submit any requests pursuant to Article 16(5) and 
(10) to the EFTA Surveillance Authority, which shall promptly pass them on to the Commission.” 
(ib) The following subparagraph shal l be added in Article 18a(1):  
 “Reallocation of aircraft operators to th e EFTA States, should take place during 
year 2011, after fulfilment by the operato r of its 2010 obligations. A different 
timeline for reallocation of ai rcraft operators initially assigned to a Member State 
on the basis of the criteria mentioned under (b), can be ag reed by the initial 
administering Member State, further to  an explicit request introduced by the 
operator within 6 months from the a doption by the Commission of the EEA-wide 
list of operators foreseen under Article 18a( 3)(b). In this case, reallocation shall 
take place no later than year 2020 with re gard to the trading period beginning in 
2021.” 
(ic) In Article 18a(3)(b), the words “for the whole EEA” shall be inserted after the 
words “aircraft operators”. 
(id) The following subparagraph shall be added in Article 18b: “For the purposes of carrying out their tasks under the Directive, the EFTA States and 
the EFTA Surveillance Authority may reque st the assistance of Eurocontrol or 
another relevant organisati on and may conclude to that  effect any appropriate 
agreements with those organisations.”’ 
Article 2 
The texts of Directive 2008/101/EC in the Icelandic and Norwegian la nguages, to be published in the 
EEA Supplement to the Official Journal of the European Union , shall be authentic. 
Article 3 
This Decision shall enter into force on the day fo llowing the last notification to the EEA Joint 
Committee under Article 103(1) of the Agreement 
∗. 
Article 4 
This Decision shall be publishe d in the EEA Section of, and in the EEA Supplement to, the Official 
Journal of the European Union . 
Done at Brussels, .  For the EEA Joint Committee  
The President  
                                                
 
∗ [No constitutional requirements indicated.]  [Constitutional requirements indicated.] 
EN 10   EN   
 The Secretaries  
to the EEA Joint Committee  
EN 11   EN Joint Declaration by the Contracting Parties 
to Decision No […] incorporating Directive 2008/101/EC into the Agreement 
[for adoption with the Decision  and for publication in the OJ] 
‘Directive 2008/101/EC intr oduces the earmarking of revenues generated from the auctioning of 
allowances for aviation. The appli cation of this provision by the EFTA  States is without prejudice to 
the scope of the EEA Agreement. 
As regards the decisions on benchmarks pursuant to  Articles 3e(3) and 3f(5 ) of Directive 2003/87/EC 
as amended by Directive 2008/101/EC, the Contracting Parties will make every effort in order to 
ensure swift adoption and entry into force of an  EEA Joint Committee decision incorporating each 
decision of the European Commission. In order to guarantee the homogeneity of the EEA and of its 
common ETS, a joint and parallel process of the Cont racting Parties shall lead up to the decisions of 
the European Commission, which shall be incorporated into the EEA Agreement, if necessary by use of 
written procedure. 
With the aim to provide for a transparent ETS in the EEA for all aviation operators concerned, the 
Commission will foresee special clauses in its de cisions implementing Directive 2008/101/EC, which 
will make reference to the extension of the decisions  to the EEA EFTA States by decisions of the EEA 
Joint Committee.’