Common Position (EC) No 13/2008 of 18 April 2008 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of 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
Date: 2008-04-18
Institutions: Council of the European Union
Subjects: EU environmental policy, air transport, civil aviation, climate change, environmental impact, greenhouse gas, reduction of gas emissions, tradeable emission permit

20.5.2008

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Official Journal of the European Union

C 122E/19

COMMON POSITION (EC) No 13/2008

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 Com-
munity, 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),

Having regard to the opinion of
Regions (2),

the Committee of

the

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

laid down in

(4)

Whereas:

(1)

(2)

(3)

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.

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.

(5)

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
levels. The latest scientific findings
above pre-industrial

(1) OJ C 175, 27.7.2007, p. 47.
(2) OJ C 305, 15.12.2007, p. 15.
(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 …

(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).

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

reported by the Intergovernmental Panel on Climate
Change (IPCC) in its Fourth Assessment Report demon-
strate 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 Develop-
ment Goals, as well as to human health and security.
Keeping the 2 °C objective within reach requires stabilisa-
tion 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.

a

and
and, until

The European Council emphasised that
the European
Union is committed to transforming Europe into a highly
greenhouse-gas-emitting
energy-efficient
low
economy
and comprehensive
post-2012 agreement is concluded, made a firm indepen-
dent 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.

global

the EU is
The European Council emphasised that
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
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,
the
Commission should consider which amendments to this
Directive as it applies to aircraft operators are necessary.

in this event,

this objective

towards

at

C 122E/20

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Official Journal of the European Union

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(6)

(7)

national

The UNFCCC requires all parties to formulate and imple-
ment
regional
programmes containing measures to mitigate climate
change.

and, where

appropriate,

The Kyoto Protocol to the UNFCCC, which was approved
on behalf of the European Community by Council Deci-
sion 2002/358/EC (1), requires developed countries to
pursue the limitation or reduction of emissions of green-
house gases not controlled by the Montreal Protocol
from aviation, working through the International Civil
Aviation Organization (ICAO).

(10)

(11)

of

of

the

ICAO Committee

all Member States

(8) While the Community is not a Contracting Party to the
1944 Chicago Convention on International Civil Aviation
(‘the Chicago Convention’),
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 sixth
the climate change impacts of aviation. At
meeting
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 suffi-
ciently unattractive that it should not then be pursued
further. Consequently, Resolution A35-5
the
ICAO's 35th Assembly held in September 2004 did not
instrument but instead endorsed
propose a new legal
open emissions trading and the possibility for States to
incorporate emissions from international aviation into
their emissions trading schemes. Appendix L to Resolu-
tion A36-22 of
the ICAO's 36th Assembly held in
September 2007 urges Contracting States not to imple-
ment 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 terri-
tory.

(9)

The Sixth Community Environment Action Programme
established by Decision No 1600/2002/EC of
the
European Parliament and of the Council (2) 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.

Policies and measures should be implemented at Member
State and Community level across all sectors of the Com-
munity 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.

the

the

the

European

Parliament,

In its Communication of 27 September 2005 to the
Council,
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,
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 recog-
nised that, from an economic and environmental point
of view, the inclusion of the aviation sector in the Com-
munity 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 avia-
tion (3), the European Parliament recognised that emis-
sions trading has the potential to play a role as part of a
the
comprehensive package of measures
climate impact of aviation, provided that it is appropri-
ately designed.

to address

(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 emis-
sions 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 desig-
nator used in the identification of the flight. If the iden-
tity of the aircraft operator is not known, the owner of

(1) OJ L 130, 15.5.2002, p. 1.
(2) OJ L 242, 10.9.2002, p. 1.

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

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C 122E/21

the aircraft should be regarded as the aircraft operator
unless it proves which other person was the aircraft
operator.

(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.

(14)

(15)

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
flights to the Community the Commission
impact of
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.

In line with the principle of better regulation, certain
flights should be exempt from the scheme. To further
avoid disproportionate administrative burdens, commer-
cial air transport operators operating, for three consecu-
tive four-month periods,
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.

fewer

(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
impact of aviation could be around two
that the total
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 harmo-
nised 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 Commis-
sion. 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.

(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)

(21)

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 proce-
dures that may be undertaken in accordance with Arti-
cles 87 and 88 of the Treaty.

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

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20.5.2008

(22)

(23)

(24)

(25)

(26)

(27)

(28)

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 Com-
munity level on the aircraft operator concerned, as a last
resort.

To maintain the integrity of the accounting system for
the Community scheme in view of the fact that emissions
integrated into
from international aviation are not
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.

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.

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

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.

The Commission should review the functioning of Direc-
tive 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.

The review of the functioning of Directive 2003/87/EC
in relation to aviation activities should consider the struc-
tural 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 elim-
inating any accessibility and competitiveness problems

for

outermost

arising
in
Article 299(2) of the Treaty, and problems for public
service obligations in connection with the implementa-
tion of this Directive.

specified

regions,

as

(29)

(30)

(31)

(32)

The Ministerial Statement on Gibraltar Airport, agreed in
Cordoba on 18 September 2006, during the first Minis-
terial 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.

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
implementing powers
the exercise of
conferred on the Commission (1).

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.

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
in accordance with the principle of
adopt measures,
subsidiarity as set out
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.

in Article 5 of

the Treaty.

(33)

In accordance with point 34 of
the Interinstitutional
Agreement on better law-making (2), 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.

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

accordingly,

(1) OJ L 184, 17.7.1999, p. 23. Decision as amended by Decision

2006/512/EC (OJ L 200, 22.7.2006, p. 11).

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

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HAVE ADOPTED THIS DIRECTIVE:

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:

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:

‘CHAPTER I

General provisions’;

2.

the following paragraph shall be added to Article 2:

The application of this Directive to the airport of
‘3.
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 avia-
tion activity listed in Annex I of the gases specified
in respect of that activity;’;

‘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 … (*), 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, emer-
gency medical service flights, and flights performed by
for three
commercial air transport operators operating,
consecutive four-month periods, fewer than 243 flights per
period.

Article 3c

(b) the following points shall be added:

Total quantity of allowances for aviation

‘(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
transport services to the
or non-scheduled air
freight or
public for the carriage of passengers,
mail;

(q) “administering Member State” means the Member
State responsible for administering the Community
scheme in respect of an aircraft operator in accord-
ance 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;

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 histor-
ical 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 accord-
ance with Article 30(4).

By … (*),

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

estimates

actual

on

(s) “historical aviation emissions” means the mean
average of the annual emissions in the calendar

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

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Article 3d

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.

Method of allocation of
through auctioning

allowances

for aviation

In the period referred to in Article 3c(1), 10 % of

1.
allowances shall be auctioned.

For

subsequent periods,

2.
to be
auctioned referred to in paragraph 1 may be increased as
part of the general review of this Directive.

the percentage

3.
A Regulation shall be adopted containing detailed
provisions for the auctioning by Member States of allow-
ances 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 refer-
ence year shall be the calendar year ending 24 months
before the start of the period to which the auction relates.

At

least eighteen months before the start of

2.
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.

At least fifteen months before the start of each period
3.
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;

(c)

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

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).

(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

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 Direc-
tive.

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

Article 3e

(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 para-
graph 2.

The benchmark referred to in point (e), expressed as allow-
ances 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 para-
graph 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:

Allocation and issue of allowances to aircraft operators

(a)

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 adminis-
tering 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 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
in
paragraph 3(e); and

benchmark

referred

the

by

to

(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 avia-
tion activity listed in Annex I.

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5.
By 28 February 2012 and by 28 February of each
subsequent year, the competent authority of the adminis-
tering 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

In each period referred to in Article 3c(2), 3 % of the
1.
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-kilo-
metre 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
in respect of a period referred to in
Article 3e(1)
that
Article 3c(2) and the second calendar year of
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 applica-
tion 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;

(b) provide evidence that the criteria for eligibility under

paragraph 1 are fulfilled; and

(c)

in the
paragraph 1(b), state:

case of

aircraft operators

falling within

(i)

in

increase

percentage

the
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

(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).

No later

4.
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 allow-
ances 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
applications
submitted to the Commission in accordance with para-
graphs 3(a) and 4; and

paragraph

included

1(a)

in

(b) the absolute growth in tonne-kilometres exceeding the
for aircraft
percentage specified in paragraph 1(b)
operators falling within paragraph 1(b)
included in
applications submitted to the Commission in accord-
ance 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 bench-
mark 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;

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(ii) in the case of an aircraft operator falling within
paragraph 1(b), the absolute growth in tonne-kilo-
metres exceeding the percentage specified in para-
graph 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.

Any unallocated allowances in the special reserve

8.
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,
to amend
non-essential elements of this Directive by supplementing
it, shall be adopted in accordance with the regulatory proce-
dure with scrutiny referred to in Article 23(3).

designed

7.

the following title shall be inserted after Article 11:

‘CHAPTER IV

Provisions
installations’;

applying

to

aviation

and

stationary

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 develop-
ment of the international climate change regime.

Article 3g

Monitoring and reporting plans

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

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 accord-
ance 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 allow-
ances in respect of activities listed in Annex I other than
aviation 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 para-
graph 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 activ-
ities listed in Annex I
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.’;

for which it

(c) paragraph 3 shall be replaced by the following:

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.’;

‘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 veri-
fied in accordance with Article 15, and that these are
subsequently cancelled.’;

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11.

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

breach of requirements to surrender sufficient allow-
ances under this Directive.

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 applica-
tion under Articles 3e or 3f’ shall be inserted;

(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
reports the emissions during each
aircraft operator
calendar
from
installation,
from the
1 January 2010, the aircraft, which it operates to the
in
competent authority after
accordance with the guidelines.’;

the end of

that year

year

or,

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 accord-
ance 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
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).’;

reports

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

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 emis-
sions 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
emitted for which the
operator or aircraft operator has not surrendered allow-
ances. 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.’;

equivalent

(c)

the following paragraphs shall be added:

In the event

that an aircraft operator fails to
‘5.
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.

Any request by an administering Member State

6.
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;

(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.

7. When requests such as those referred to in para-
graph 5 are addressed to the Commission, the Commis-
inform the other Member States (through
sion shall
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 appro-
priate and practicable, by consultations with the autho-
rities responsible for regulatory oversight of the aircraft
operator concerned. Whenever possible, consultations
shall be held jointly by the Commission and the
Member States.

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it

9. When the Commission is considering whether to
adopt a decision following a request pursuant to para-
graph 5,
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
the Commission within
10 working days from the date of disclosure.

comments

to

At the request of a Member State, the Commis-
10.
sion,
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 terri-
tory, 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 estab-
lished in respect of the procedures referred to in this
Article. Those measures, designed to amend non-essen-
tial elements of this Directive by supplementing it, shall
be adopted in accordance with the regulatory procedure
with scrutiny referred to in Article 23(3).’;

Based on the best available information, the Commis-

3.
sion shall:

(a) before 1 February 2009, publish a list of aircraft opera-
tors 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 subse-
quently 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 Arti-
cles 3c(4) and 18a, the Commission may request the assis-
tance of Eurocontrol and may conclude to that effect any
appropriate agreements with that organisation.

15. the following Articles shall be inserted:

(*) OJ L 240, 24.8.1992, p. 1.’;

‘Article 18a

16.

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

Administering Member State

(a)

the last sentence shall be replaced by the following:

The administering Member State in respect of an

1.
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 (*), the
Member State which granted the operating licence in
respect of that aircraft operator; and

(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
falling
from flights performed by an aircraft operator
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
the
previous period.

two years of

also

shall

include

provisions
‘That Regulation
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
in the Community
inclusion of aviation activities
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.’;

17.

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

reference

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

is made

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18. the following Article shall be inserted:

installations in the pool, by way of derogation from
Article 16(2), (3) and (4).’;

‘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 regula-
tory procedure with scrutiny referred to in Article 23(3).

20. the following paragraph shall be added to Article 30:

By 1 June 2015 the Commission shall, on the basis
‘4.
of monitoring and experience of the application of this
Directive, review the functioning of this Directive in rela-
tion to aviation activities in Annex I and may make propo-
sals as appropriate. The Commission shall give considera-
tion 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;

(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

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

sector;

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

to the Council

2.
The Community and its Member States shall continue
to seek an agreement on global measures to reduce green-
house gas emissions from aviation. In the light of any such
agreement, the Commission shall consider whether amend-
ments 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,
than allowances issued under Chapter II,
to the total emissions from installations
derogation from

other
equal
in the pool,
by way of
Articles 6(2)(e) and 12(3); and’;

(b) paragraph 4 shall be replaced by the following:

The trustee shall be subject

to the penalties
‘4.
applicable for breaches of requirements to surrender
sufficient allowances, other
issued
under Chapter II, to cover the total emissions from

than allowances

(e) continuing with the special reserve for aircraft opera-
the likely convergence of

tors,
taking into account
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;

(g) whether a gateway system should be included to facili-
tate 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 terms of certified maximum take-off
in Annex I
mass and number of flights per year performed by an
aircraft operator; and

(i)

the exemption from the Community
the impact of
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 (*).

The Commission shall
Parliament and the Council.

then report

to the European

(*) 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).’;

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

‘CHAPTER V

Final provisions’;

Article 3

Entry into force

22. Annexes I, IV and V shall be amended in accordance with

the Annex to this Directive.

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

Article 2

Transposition

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

When Member States adopt those measures, they shall contain a
reference to this Directive or shall be accompanied by such
their official publication. The
reference on the occasion of
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 4

Addressees

This Directive is addressed to the Member States.

Done at …

For the European Parliament

The President

…

For the Council

The President

…

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

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

ANNEX

1. Annex I shall be amended as follows:

(a)

the title shall be replaced by the following:

‘CATEGORIES OF ACTIVITIES TO WHICH THIS DIRECTIVE APPLIES’;

(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 terri-
tory of a Member State to which the Treaty applies.

Carbon dioxide’

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;

(c)

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

(d) any flights performed exclusively under visual flight rules as defined in

Annex 2 to the Chicago Convention;

(e)

(f)

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

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;

(h) flights performed by aircraft with a certified maximum take-off mass

of less than 5 700 kg;

(i)

(j)

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

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.

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2. Annex IV shall be amended as follows:

(a)

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

‘PART A — MONITORING AND REPORTING OF EMISSIONS FROM STATIONARY INSTALLATIONS’;

(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 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 number and issuing authority of the air operator certificate and operating licence under which the avia-

tion 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

— name of the aircraft owner.

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

— fuel consumption,

— 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,

— 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,

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— 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,

— 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,

— 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,

— its 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 number and issuing authority of the air operator certificate and operating licence under which the avia-

tion 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

— name of the aircraft owner.

B. Tonne-kilometre data:

— number of flights by aerodrome pair,

— number of passenger-kilometres by aerodrome pair,

— number of tonne-kilometres by aerodrome pair,

— 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.’;

3. Annex V shall be amended as follows:

(a)

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

‘PART A — VERIFICATION OF EMISSIONS FROM STATIONARY INSTALLATIONS’;

(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.

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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;

(c)

(d)

(e)

(f)

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

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;

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

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;

(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
Articles 3e and 3f

tonne-kilometre data submitted for the purposes of

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.’.

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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 avia-
tion, 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 implementa-
tion.

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 coher-
ence 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 legisla-
tion, the complexity of the scheme and the need to provide for a number of implementing measures.

(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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(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 func-
tioning 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 adap-
tation to the overall functioning of the Community scheme.

On the use of the proceeds generated from auctioning, the Council adopts a slightly modified posi-
tion 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, along-
side 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.

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(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 frame-
work 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 opera-
tors with the scheme, a matter of utmost importance to the Council.

Furthermore, the Council has modified the Commission proposal as regards the conversion of allow-
ances 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.

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The Council has also substantially amended Article 25a, which now seeks to clarify the various institu-
tional 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 corre-
sponding 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 Com-
munity 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.